Martinsville Seven and southern justice: race, crime, and capital punishment in Virginia, 1949-1951

THE MARTINSVILLE SEVEN AND SOUTHERN JUSTICE:

RACE, CRIME, AND CAPITAL PUNISHMENT IN VIRGINIA,

1949-1951

By
ERIC WALTER RISE

A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL

OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT

OF THE REQUIREMENTS FOR THE DEGREE OF

DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

1992

ACKNOWLEDGMENTS

Several years ago, long before my hairline receded and
my waistline expanded, Kermit Hall suggested that the
Martinsville Seven case might make an interesting topic for
a research paper. The case raised issues of cold war
politics, civil rights and civil liberties, and the
administration of criminal justice, all topics that
interested me, so I heeded his advice. The project has
grown considerably since then, and Professor Hall must
receive much of the credit for that transformation.
Throughout this endeavor he has tendered useful advice,
dispensed timely and constructive criticism, and continually
assured me that I had undertaken a worthwhile project. His
support extended beyond matters of the dissertation as well,
and he eased many of the stresses of graduate school
education. The other members of my supervisory committee —
David Colburn, Michael Radelet, John Sommerville, Anne
Spitzer, and Robert Zieger — also displayed an extraordinary
amount of interest in my work. Their collective advice,
representing a broad range of disciplinary and
methodological perspectives, greatly improved my
scholarship.

The practice of history is a collegial endeavor, and
several scholars graciously volunteered information that
enhanced the quality of the dissertation. In the early
stages of the project Charles H. Martin saved me untold
hours of research by directing me to most of the pertinent
archival collections. Jerome Gorman, an anti-death penalty
activist in Richmond, sent me photocopies of material he had
collected about the case. Peter Wallenstein shared his
files on the justices of the Virginia Supreme Court of
Appeals, and Richard B. Sherman supplied some elusive
biographical data on Martin A. Martin, the principal
attorney in the Martinsville case. Jack Henderson directed
me to numerous sources on the historiography of communism
and African-Americans. Charles Martin and Mary Dudziak also
read earlier versions of the dissertation and provided sage
and encouraging advice.

The writing of history would be impossible without
access to sources, and the librarians and archivists I
encountered during my research performed their duties with
uncommon courtesy and professionalism. The staffs of the
Alderman Library at the University of Virginia, the circuit
executive's office of the Fourth U. S. Circuit Court of
Appeals, the Patrick Henry Community College Library, the
Margaret I. King Library at the University of Kentucky, the
National Archives — Mid-Atlantic Region, the Richmond Public
Law Library, the Richmond Public Library, the Schomburg

Center for Research in Black Culture, the Harry S. Truman
Library, the Swem Library at the College of William and
Mary, the clerk's office of the U. S. District Court for the
Eastern District of Virginia, the Virginia State Law
Library, the Virginia State Library and Archives, the
Virginia Commonwealth University Library, and the Washington
National Records Center all provided expert assistance. I
would particularly like to acknowledge the courtesies
extended by Joe Sullivan at the Library of Congress and Carl
DeHart at the Blue Ridge Regional Library in Martinsville.
Rick Donnelly and Rosalie Sanderson of the University of
Florida's Legal Information Center patiently nurtured my
research skills in my dual role as law student and
historian. Melanie Davis in the University's Interlibrary
Loan Office unearthed mounds of obscure material. Special
thanks go to Ashby R. Pritchett, clerk of the Martinsville
Circuit Court, who provided me with access to the trial
transcripts and other court records, ample work space, and a
pleasant working environment during my visits to
Martinsville.

I am especially grateful to Oliver Hill and the late
Roland Ealey, who graciously took time out of their busy
schedules to explain the legal strategy that the NAACP
developed in the Martinsville case. As a native of the
South, a fertile breeding ground of raconteurs and tellers
of tall tales, I have always been skeptical of the value of

oral history. Mr. Hill and Mr. Ealey introduced me to the
perspective, detail, and local color that only participants
in the making of history can provide.

I would like to thank the taxpayers of Florida for
funding several assistantships and fellowships from the
Department of History, the College of Law, and the Center
for Studies in Criminology and Law at the University of
Florida. My sojourn at the Center was considerably
enlivened by its director, Charlie Thomas, who continually
threatened to make a criminologist out of me and ultimately
succeeded. I am also indebted to Gus Burns, who furnished
me with several summers of employment as associate director
of his NEH summer institute programs. The Society of
Colonial Dames in St. Augustine also provided a generous
award that allowed me to travel to primary source
collections in Virginia. I also appreciated the hospitality
of a fellow Gator, Dave Uible, while I did research in
Washington.

I would never have survived graduate school without the
support of family and friends. Jeff Brautigam, Chris
Morris, Dave Tegeder, and Joe Thompson were especially
helpful in maintaining my sanity. Every Friday we met for
lunch to debate politics, sports, cinema, and occasionally,
the nature of history. John Benske was a constant source of
companionship and Caribbean refreshment before he moved to
Miami. I have also learned the value of having a close-knit

family. Aunts, uncles, cousins, grandparents, and in-laws
all expressed an interest in my studies. My brother and
former roommate, Bruce Rise, drew me away from scholarly
pursuits at the appropriate moments, while my sister, Kim
Kalaman, remains the only other family member who
appreciates the genius of the Three Stooges. My parents,
Walter and Beverly Rise, were always supportive of my
decision to pursue the history profession. I credit their
love and support with instilling in me a passion for
knowledge.

Finally, I must thank my wife, Karen, for being an
unflagging source of encouragement and good humor. Karen
performed more than her fair share of household duties to
give me time to finish the dissertation, but she also knew
when to put her foot down and draw me back into the real
world. She badgered me to mow the lawn, cajoled me into
taking her to the movies, castigated me for being a
perfectionist and a procrastinator, and brought home a dog
that demanded to go outside every time I sat down to write.
For all these diversions, for her love and understanding,
and for the most wonderful home-cooked meals that a Yankee
could possibly prepare, I owe her my deepest thanks.

TABLE OF CONTENTS

page

ACKNOWLEDGMENTS iii

ABSTRACT ix

CHAPTERS

1 INTRODUCTION 1

Notes 8

2 PORTRAIT OF A SOUTHERN TOWN 11

Notes 21

3 A RAPE IN MARTINSVILLE 24

Notes 55

4 "A MATTER FOR THE JURY TO DECIDE" 59

Notes 99

5 ARRANGEMENT IN RED AND BLACK 105

Notes , 133

6 "NO ABUSE OF DISCRETION": THE MARTINSVILLE SEVEN

IN THE APPELLATE COURTS 139

Notes 182

7 "WITH AN EVIL EYE AND AN UNEQUAL HAND":

CHALLENGING THE DEATH PENALTY 190

Notes 245

8 THE ELEVENTH HOUR 253

Notes 279

9 CONCLUSION 283

Notes 293

BIBLIOGRAPHY 296

BIOGRAPHICAL SKETCH 317

Abstract of Dissertation Presented to the Graduate School

of the University of Florida in Partial Fulfillment of the

Requirements for the Degree of Doctor of Philosophy

THE MARTINSVILLE SEVEN AND SOUTHERN JUSTICE:

RACE, CRIME, AND CAPITAL PUNISHMENT IN VIRGINIA,

1949-1951

By

Eric Walter Rise

December 1992

Chairman: Kermit L. Hall
Major Department: History

In February 1951, seven black men convicted of raping a

white woman died in the electric chair of the Virginia State

Penitentiary. Never before had a state executed as many men

for a single rape incident. To many civil rights

organizations, including the National Association for the

Advancement of Colored People (NAACP) and the more radical

Civil Rights Congress (CRC) , the executions of the

"Martinsville Seven" evoked images of Scottsboro and other

instances of the discriminatory administration of justice in

the South. Certain striking characteristics distinguished

the Martinsville case from classic "legal lynchings,"

however, including the absence of mob protest, the trial

court's concern for procedural regularity, and the apparent

guilt of the defendants. These differences forced NAACP

attorneys to reject narrow procedural challenges in favor of

a direct attack on the discriminatory application of the
death penalty. In fact, the Martinsville case was one of
the earliest instances in which attorneys marshalled
statistical evidence to prove systematic discrimination
against African-Americans in capital cases.

The executions of the Martinsville Seven, more than any
other case, demonstrated the power of the Southern legal
system to enforce codes of racial behavior. Even in the
Scottsboro case, the cause celebre for a generation of
combatants against racial injustice, all of the defendants
escaped execution and four of the men even avoided lengthy
prison terms once procedural violations had been corrected.
Because the Martinsville court had adhered to established
procedural rules, NAACP attorneys initiated a broad attack
on systemic racism in the legal process. At the same time,
the NAACP struggled to distance itself from the CRC, which
advanced similar criticisms of the American legal system,
because the perceived cooperation between the two
organizations undermined the efforts of NAACP leaders to
link the cause of civil rights to the Cold War liberal
agenda. The strategies and tactics of the NAACP, which had
met only limited success in saving innocent African-
Americans from execution, proved even less effective when
applied to guilty defendants during a period characterized
by xenophobic anticommunism and the related fear of emerging
black activism.

CHAPTER 1
INTRODUCTION

During the first week of February, 1951, the
"Martinsville Seven," a group of young black men convicted
of raping a white woman, died in the electric chair of the
Virginia State Penitentiary. Never before had a state
executed so many men for the same rape incident nor had a
lynching of that magnitude for men accused of rape ever been
reported.1 At a time when African-Americans were beginning
to assert their civil rights vigorously, the executions
provided a stark reminder of the harsh treatment reserved
for blacks who violated Southern racial codes. Yet concerns
other than racial control surfaced throughout the course of
the proceedings. The values of due process, crime control,
community stability, judicial restraint, and domestic
security, as much as a commitment to white supremacy,
influenced the outcomes of the trials and the appeals. Thus
the conduct of the Martinsville Seven case challenged the
traditional view that Southern African-American defendants
entered a criminal justice system dedicated solely to
preserving a society based upon racial inequality.

The stereotypical view of southern justice has been
well documented. Black defendants fortunate enough to

2
escape the lynch mob's rope faced trial in southern
courtrooms that institutionalized the informal practices of
the mob. Racist juries summarily convicted these defendants
on false charges of crimes, usually rape, against whites and
sentenced them to be executed. Civil rights lawyers seized
on these cases to challenge due process violations such as
the all-white jury, lack of adeguate counsel, and coerced
confessions, but southern appellate courts sacrificed
constitutional principles in order to preserve a culture
that used fear and violence to subordinate African-
Americans.

A litany of cases in the twentieth century amply
supported this view of the southern legal system. In 1932
an Oklahoma jury convicted Jess Hollins of rape and
sentenced him to death despite exculpatory evidence. Two
years later, Ed Brown and two other black Mississippi tenant
farmers were convicted of murder on the basis of confessions
obtained only after several days of torture and
intimidation. Certainly the most notorious incident
occurred in Scottsboro, Alabama, when nine black teenagers
received death sentences for rape on the guestionable
testimony of the alleged victims, one of whom later recanted
her original statements. These incidents suggested that
innocent black defendants often fell victim to judges and
juries that either ignored due process reguirements or, more

often, employed the trappings of procedure to mask
discriminatory motives.

In many respects, the case of the Martinsville Seven
fit this pattern. On January 8, 1949, a thirty-two-year-old
white woman in Martinsville, Virginia, accused seven young
black men of violently raping her. Within two days state
and local police had arrested and obtained confessions from
each of the suspects. In a rapid succession of brief trials
held over the course of eleven days, six separate juries
convicted the defendants of rape and sentenced them to
death. State and federal appellate tribunals rejected pleas
to overturn the convictions on procedural and constitutional
grounds. In February 1951, amid protests from civil rights
activists, radicals, and death penalty opponents, the seven
men died in the electric chair.

Nevertheless, certain striking characteristics
distinguished the Martinsville case from classic "legal
lynchings," as the summary convictions of innocent black
defendants were known. The evidence presented at trial
clearly proved that nonconsensual sexual intercourse with
the victim had taken place. All seven defendants admitted
their presence at the scene, and although some of the men
may not have actually consummated the act, Virginia law
authorized capital punishment for attempted rape and aiding
and abetting a rape.5 Angry mobs made no attempt to exact
extralegal punishment, even though five months passed from

4
the crime to the first trial. The prosecution emphasized
the preservation of community stability, not the protection
of southern womanly virtues, as the dominant concern of
Martinsville's white citizens. Most importantly, the trial
judge made a concerted effort to mute the racial overtones
of the trials. Although white juries decided each case,
blacks appeared in every jury pool. Race-baiting by
prosecutors and witnesses, a common feature of many similar
rape trials, was notably absent in the Martinsville
proceedings. By diligently adhering to procedural
reguirements, the court attempted to try the case, in the
judge's words, as if "both parties were members of the same
race. "

The unigue nature of the Martinsville case emerged from
the competing values of due process and crime control that
characterized the administration of justice after World War
II. The societal dislocations that accompanied the end of
the war created a fear of disorder and lawlessness and led
to a call for stricter treatment of criminal behavior. The
fear of black criminality was exacerbated by the eruption of
race riots in Detroit, New York, Los Angeles, and other
American cities. At the same time, law enforcement agencies
grew more professional and placed even greater emphasis on
curbing criminal activity. Mob action declined as the
citizenry placed greater trust in the local police force and

5
judiciary to control crime and violence and maintain
domestic and racial stability.

At the same time, proceedings such as the Scottsboro
case had prompted the federal courts to promulgate
procedural rules that would prevent "legal lynchings" in
southern courtrooms. In cases arising from the Ed Brown and
Scottsboro episodes, for instance, civil rights attorneys
convinced the United States Supreme Court, under the due
process clause of the Fourteenth Amendment, to outlaw
coerced confessions and to mandate the appointment of
defense counsel in capital cases. A procession of similar
cases led Justice Hugo Black to remark in another confession
case, Chambers v. Florida (1940) , that abuses of due process
by the states appeared to fall unduly on "the poor, the
ignorant, the numerically weak, the friendless, and the
powerless," categories that included a disproportionate
number of African-Americans. After World War II, southern
courts and police recognized that adherence to minimal due
process reguirements immunized them from appellate censure
and granted them wide latitude to enforce local standards of
orderly behavior.

Ironically, the success of the due process campaign by
such groups as the National Association for the Advancement
of Colored People (NAACP) made it more difficult to save
defendants such as the Martinsville Seven from execution.
The juries who heard the Martinsville cases delivered death

6
sentences that reinforced the racial mores of a southern
community within the legal constraints mandated by federal
law. Because the perceived injustice in the Martinsville
case appeared in the severity of the sentences rather than
the conduct of the trials, attorneys for the NAACP, who
represented the men on appeal, elected to abandon narrow
procedural challenges in favor of a direct attack on the
discriminatory application of the death penalty. In fact,
the Martinsville case was one of the earliest instances in
which lawyers marshaled statistical evidence to prove
systematic discrimination against blacks in capital cases,
rather than focusing on procedural errors within a
particular case. The shift from due process to egual
protection arguments also represented an attempt to link the
NAACP' s criminal litigation program to the broader goals of
the civil rights movement.9 This tactic, however, struck at
the heart of the power of local juries to prescribe
punishment for those who disrupted community stability or
transgressed codes of acceptable conduct. The state and
federal courts that heard the Martinsville Seven's legal
appeals refused to invoke the equal protection clause to
limit sentencing discretion of local juries.

One further difficulty arose in representing the
Martinsville defendants. The interest of radical civil
rights organization such as the Civil Rights Congress (CRC)
made it difficult for the NAACP to broadly challenge the

7
discriminatory administration of justice without appearing
to be aligned with Communists and other leftists who aimed
similar criticisms at the American legal system. Animosity
between the NAACP and communist legal organizations dated
back to the mid-1920s and received its widest publicity in
the struggle over the Scottsboro defense. After 1945, the
enmity between the United States and the Soviet Union and
the fear of domestic communism exacerbated these tensions.
The emergence of widespread civil rights activism at the
same time led many southern politicians to assert that
Communist agents had inspired growing demands for black
equality. By calling the operation of the prevailing legal
order into question, cold warriors asserted, the NAACP
fueled radical criticisms of the American social and
economic order. Furthermore, the simultaneous appearance of
blacks, foreigners, and radicals who vigorously asserted
their rights and liberties appeared to pose a monstrous
threat to the established social order.

The executions of the Martinsville Seven, more than any
other case, demonstrated the power of the southern legal
system to enforce codes of racial behavior. Not even the
Scottsboro case, the cause celebre for a generation of
combatants against racial injustice, carried the same force
because all of the defendants escaped execution and the
prosecution dismissed charges against four of the men. In
the Martinsville case, by contrast, appellate courts

8
uniformly endorsed procedures used to sentence seven men to
death for a crime that involved no homicidal intent;
moreover, those procedures were the product of lawsuits
filed earlier by civil rights attorneys on behalf of other
black defendants. Because the guilt of the defendants was
never seriously challenged, the strictly legal issues
related to egual protection for black defendants eclipsed
the humanitarian motives associated with freeing the
wrongfully accused. This difference forced NAACP attorneys
to initiate broad attacks on systemic racism in the legal
process while simultaneously distancing themselves from
radical civil rights organizations that consistently sought
to discredit American government and society. The
strategies and tactics of the NAACP, which had met only
limited success in saving innocent blacks from execution,
proved even less effective when applied to guilty defendants
during a period of domestic tension informed by xenophobic
anticommunism and the related fear of rising black activism.

Notes

1. A compilation of state-imposed executions between 1864
and 1982 can be found in William J. Bowers, Legal Homicide:
Death as Punishment in America. 1864-1982 (Boston, 1984) ,
Appendix A, 395-523. Descriptions of reported lynchings
appear in National Association for the Advancement of Colored
People, Thirty Years of Lynching in the United States: 1889-
1918 (New York, 1919; reprint, New York, 1969), 43-105; and
Jessie Daniel Ames, The Changing Character of Lynching: Review
of Lynching. 1931-1941 (Atlanta, 1942), 34-50.

2. George C. Wright, Racial Violence in Kentucky, 1865-1940;
Lynchings, Mob Rule, and "Legal Lynchings" (Baton Rouge and
London, 1990) , is an excellent analysis of the transformation
from mob rule to institutionalized racism.

3. See Charles H. Martin, "Oklahoma's 'Scottsboro' Affair:
The Jess Hollins Rape Case, 1931-1936," South Atlantic
Quarterly 79 (Spring 1980): 175-88; Richard C. Cortner, A
"Scottsboro" Case in Mississippi: The Supreme Court and Brown
v. Mississippi (Jackson, 1986) ; Dan T. Carter, Scottsboro: A
Tragedy of the American South (Baton Rouge, 1969) . For a
catalog of innocent defendants, white and black, who were
wrongfully convicted of murder or capital rape between 1900
and 1985, see Hugo Adam Bedau and Michael Radelet,
"Miscarriages of Justice in Potentially Capital Cases,"
Stanford Law Review 40 (November 1987): 91-172.

4. Two recent interpretations of the Martinsville case place
it sguarely in the tradition of classic "legal lynchings."
See Charles W. Simmons III, "Virginia Justice and the
Martinsville Seven" (M.A. thesis, Virginia State University,
1985) , and Gerald Home, Communist Front? The Civil Rights
Congress, 1946-1956 (Rutherford, N.J., 1988), 213-223.

5. Va. Code Ann. , ch. 173, sec. 4414 (1942).

6. Transcript of Testimony, Motion for Change of Venue,
Commonwealth v. Joe Henry Hampton, Martinsville Circuit Court,
Martinsville, Virginia, 47-58, 88; Martinsville Bulletin, 19
April 1949, 1.

7. Samuel Walker, Popular Justice: A History of American
Criminal Justice (New York, 1980), 194-97, 201-205, 208-213.
For a discussion of the tension between crime control and due

process ideals see Herbert L. Packer, The Limits of the

Criminal Sanction (Stanford, 1968), 158-63.

8. Powell v. Alabama, 287 U.S. 45 (1932); Brown v^

Mississippi, 297 U.S. 278 (1936); David J. Bodenhamer, Fair
Trial: Rights of the Accused in American History (New York and
Oxford, 1992), 101-105. Justice Black's comments appear in
Chambers v. Florida, 309 U.S. 227, 237-38 (1940). On the
Supreme Court's role in Powell and Brown see Dan Carter,
Scottsboro, 160-65, and Richard Cortner, "Scottsboro" Case in
Mississippi . Chap. 6.

9. No comprehensive account of the NAACP's criminal due
process campaign exists. An excellent study of the NAACP's
role in an early case is Richard C. Cortner, A Mob Intent on
Death: The NAACP and the Arkansas Riot Cases (Middletown,
Conn., 1988), which examines the Supreme Court's ruling in
Moore v. Dempsey, 261 U.S. 86 (1923). Moore held that mob-

10

dominated legal proceedings violated due process. Richard
Kluger, Simple Justice (New York, 1975), 144-54, and Mark
Tushnet , The NAACP's Legal Strategy Against Segregated
Education. 1925-1950 (Chapel Hill, 1987), 38-42, examine the
effect of the Association's criminal litigation experience on
its desegregation campaign.

10. The rivalry between the NAACP and the Communist Party is
discussed in Wilson Record, Race and Radicalism: The NAACP and
the Communist Party in Conflict (Ithaca, 1964) ; and Dan
Carter, Scottsboro. Chap. 3. On the relationship between
anticommunism and racism, see Gerald Home, Black and Red:
W.E.B. DuBois and the Afro-American Response to the Cold War,
1944-1963 (Albany, 1986) , and Wayne Addison Clark, "An
Analysis of the Relationship Between Anti-Communism and
Segregationist Thought in the Deep South, 1946-1964" (Ph.D.
diss., University of North Carolina, 1976).

CHAPTER 2
PORTRAIT OF A SOUTHERN TOWN

In 1933 the authors of a history and genealogy of Henry
County, Virginia, in an essay titled, "Our Faithful Colored
People," wrote that "in no community in the South or
elsewhere was there a better class of colored people than
those" who inhabited Henry County. Other parts of the South
might have problems with "crime, insolence and indolence
engendered by the emancipation of slaves and the suddenness
of the new freedom," but the blacks of Henry County
presented no problems because they understood the benefits
of white paternalism. "Uncle Jim," for example, could
always rely on his employer to take care of the large debts
he incurred purchasing liquor while his employer patiently
tolerated Jim's propensity to sloth and drunkenness. While
this tale certainly exaggerated the beatitude that existed
between the races in Henry County, it accurately represented
the sentiment that African-Americans did not pose any
significant threat to the region's white population. During
the 1930s and 1940s, however, social and demographic changes
aroused fears that African-Americans in the county might not
adhere to established codes of racial conduct forever.

11

12
In 1776 the Virginia General Assembly created Henry
County by carving off the portion of Pittsylvania County
west of "the mouth of Blackwater on Staunton River." The
county was named for Patrick Henry, who lived on his
"Leatherwood" plantation in the northeastern corner of the
county and represented the county in the General Assembly
from 1780 to 1784. In 1784 Henry went to Richmond to serve
his fourth term as Virginia's governor and never returned to
Leatherwood. In 1787 Franklin County was formed from the
northern part of Henry County and in 1790 the General
Assembly divided Henry County in half to create Patrick
County, also named for the state's renowned champion of
liberty. Since then Henry County has covered 444 square
miles in south-central Virginia, bordering on North
Carolina. It lies just east of the Appalachian mountains
with a landscape characterized by rolling hills and gentle
valleys at the juncture of numerous rivers and creeks.

In 1791 the General Assembly authorized the
establishment of a town on fifty acres of land in the center
of Henry County. Over the next two years town leaders laid
out half-acre lots and mapped the streets that would connect
the town's neighbors. Money from the auction of the lots
paid for the construction of public buildings, including a
new courthouse. The new town of Martinsville, named after
the Virginia pioneer and Indian fighter Joseph Martin, was
situated 30 miles west of Danville, 60 miles south of

13
Roanoke, 165 miles from Richmond, and 10 miles from the
North Carolina border.3

The primary money crop of Henry County was tobacco,
grown by slave labor on several moderately sized
plantations. The largest landholders were George Hairston
and his descendants, whose "Marrowbone" plantation occupied
30,000 acres. The task of tending the tobacco fields
spanned from late winter, when the soil was prepared, to the
beginning of the following winter, when the weed was carried
to market. The reliance on slave labor was not limited to
the fields, however. Slaves also built roads, fired bricks,
cut timber, and constructed plantation homes. Domestic
servants and artisans attended the larger homes. Throughout
this period the slave population increased at a greater rate
than the white population. In 1790, 6,928 whites and 1,551
blacks lived in the county. By 1850 the white population
had grown a modest 28 percent, to 8,872 people, while the
slave population more than doubled to 3,328 people. Ten
years later, the white population had increased 3 6 percent,
to 12,105, while the slave population grew 43 percent, to
4,744. This increase occurred despite a decline in the
percentage of households owning slaves because the number of
families owning more than 100 slaves grew from one to six
between 1850 and 1860. All of those families, incidentally,
bore the surname Hairston.

14
In order to control the increasing African-American
population, white slaveowners relied on a combination of
coercive and paternalistic measures. Court records indicate
that slaves brought to trial were always found guilty.
Punishments were severe, ranging from execution to branding
and whipping. The court also enforced a Virginia statute of
1851 against "unlawful assemblage," which forbade slaves to
remain on property not owned by their master for more than
four hours. Violators were punished with the lash. At the
same time, many masters treated their own slaves
benevolently and manumitted them upon their deaths.

After the Civil War tobacco continued to sustain the
economic life of the community. As cigarettes grew in
popularity, however, sales declined because the bright leaf
variety of the plant grown in Henry County was not suitable
for cigarette manufacturing. As a result, the first large
industries emerged in the county as tobacco factories dotted
the landscape to produce snuff and chewing tobacco. In 1872
Martinsville was incorporated as a town with a population of
300 people, compared to a county population of over 12,000.
All of the factories operated outside the town limits. In
1883 the Danville and New River Railroad, later the Danville
and Western, completed its line to Martinsville and the
factories reestablished themselves in the town. By 1889,
the year the Norfolk and Southern Railway opened a north-

15
south line through the city, Martinsville's population had
grown to 2,000 people.

In 1906 the "tobacco trust," led by R. J. Reynolds
Tobacco Company, purchased most of the county's tobacco
factories and discontinued their operation. By that time,
however, Martinsville's business leaders had embarked on a
new course that would make the city one of the state's
leading industrial centers. In 1902, J. D. Bassett, Sr. ,
and his brothers converted their small sawmill into Bassett
Furniture Company, which would grow into one of the world's
largest manufacturers of wood furniture. In 1906, Ancil
Witten and Charles Keesee, two factory owners who had been
displaced by the tobacco trust, founded the American
Furniture Company. Textile factories also found a
prosperous home in Martinsville, beginning with the
Martinsville Cotton Mill in 1909. Ten years later Marshall
Field located the Fieldcrest Mills in Fieldale, about four
miles northwest of Martinsville. During the 1930s the
Pannill Knitting Company began manufacturing athletic wear,
leading to Martinsville's designation as "the sweatshirt
capital of the world." Between 1929 and 1939 the number of
factory workers in Martinsville doubled and by 1940
Martinsville housed sixteen furniture factories and nine
textile factories and ranked sixth in the state in
employment, wages, and product value. Only Virginia's
largest urban centers ranked higher. Except for the

16
Fieldcrest mills, all of Martinsville's industries were
locally owned and operated until 1941 when the DuPont
Company established a nylon plant, the county's largest
factory, just outside the city limits.

The population of Martinsville kept pace with the
city's industrial growth. In 1900, 2,384 people occupied
Martinsville and the number increased steadily each year,
reaching about 15,500 people in 1947. During the same
period, as industrial employment lured rural dwellers, the
percentage of the area's residents living in the city grew
from 12 percent to 60 percent. In 1928 the Virginia General
Assembly designated Martinsville as a city of the second
class after it reached a population of 5,000 people. In
1941, after the census revealed that over 10,000 citizens
resided in Martinsville, it was named a city of the first
class, which allowed it to establish a circuit court
independent from the Henry County circuit court. In 1947
the city added 3,500 people to its population when it
annexed six square miles of urbanized area surrounding the
central business district.

The industrial development of the city benefitted most
of Martinsville's white citizens. Even during the Great
Depression, employees of the local industries escaped the
ravages of economic dislocation because factory owners were
able to keep almost all of their workers employed. Textile
factories especially avoided financial disaster because the

17
simple products of the Martinsville mills, such as underwear
and baby clothing, were not considered luxury items. Local
factories even managed to absorb some displaced rural
workers. Between 1930 and 1940, as employment in
agriculture, forestry, and fishing declined 32 percent,
total employment rose 37 percent. Industrial employment
grew by almost two-thirds. Martinsville's unemployment rate
in 1940 was around four percent, almost ten points lower
than the national average. By 1950 Henry County had more
families with an annual income over $5,000 than any other
surrounding county.9

African-Americans in the Martinsville area did not
share in the economic development of the region. In 1890
almost half of the total population of the city and county
had been black, but between 1900 and 193 0 the county
experienced a substantial outward migration of blacks. In
the first decade of that period, one-fifth of the adult
African-Americans in Martinsville and Henry County left the
area. While the total population rose steadily, the black
population declined both as a percentage of the total and in
absolute numbers. This trend did not reverse itself until
after World War II. The number of blacks in the city
actually increased, suggesting that most of the migration
was from rural areas, but local industries could not or
would not absorb all of the workers and most of them joined

18
the "great migration" to the factories and mills in the
North and Midwest.10

Most African-Americans also found the cultural
environment of the region inhospitable. The former tobacco-
growing counties along the southern part of Virginia,
collectively known as the "southside" region, had a
reputation for racism, nativism, and localism. Although
Martinsville's industrial character and low density of
African-Americans distinguished it from the most tradition-
bound rural counties in the region, Martinsville citizens
regularly voted in a pattern consistent with southside
stalwarts such as South Boston and Prince Edward County. A
few of its residents also participated in the renaissance of
the Ku Klux Klan during the 192 0s, and in 192 5 a reputed
Klansman from Henry County, John David Bassett, challenged
the incumbent state treasurer on a "100 percent American"
platform. Martinsville also exhibited the hallmark of
racism in Virginia, an abysmal education system for black
children. With a dearth of employment and a hostile social
environment, it was not surprising that blacks chose to
leave the area.11

Nevertheless, many African-Americans who remained,
especially those from the middle class, encountered success
within the city's paternalistic social system. In 1910, for
example, Dr. Dana 0. Baldwin moved from Philadelphia, where
he was working as a dance instructor, to begin practicing

19
medicine as Henry County's first black physician. Baldwin's
practice started slowly, but he soon became successful
enough to invest in various businesses, including an ice
cream parlor and a brick yard. In 1922 he opened
Martinsville's first shopping center for blacks. The complex
of buildings, known as "Baldwin's Block," included a movie
theater, barber shop, restaurant, pool hall, drug store, and
several offices. A fire destroyed most of the buildings in
1929, but he replaced them with an even larger structure
that included a hotel and a twelve-room hospital, the first
in the city for blacks. The successes of black
professionals such as Baldwin were routinely touted by
Martinsville's white leaders as examples of the freedom of
opportunity that existed for all races in the city. In
return, Baldwin and his colleagues praised the harmonious
state of race relations. "The races of our city have more
in common than in difference," wrote R. T. Anderson, another
of Martinsville's most respected black citizens. "The ties
that bring them together are stronger than the ties that
keep them apart." Race relations in Martinsville were
therefore characterized by a pattern of "civility," in which
black and white elites worked together to police the conduct
of African-Americans who did not adhere to established codes

12

of behavior.

During the late 1930s and 1940s, however, many local
African-Americans began challenging their subservient

20
position in the racial status quo. Throughout the
Depression a number of fraternal organizations and social
clubs, including a Colored Knights of Pythias lodge, an
American Legion post named after a local black soldier
killed in World War I, and a Society for the Improvement of
the Negro Race, permitted blacks to form collective racial
identities. In 1940 a group of black teachers protested the
inequality of salaries for black and white educators, a
situation that was remedied during the 1944/45 school year
when the local school board placed all public school
teachers in the county on the same pay scale. In 1941
Armour G. McDaniel, a local teacher, forwarded an
application, signed by fifty-four black residents, for a
charter of a Martinsville branch of the NAACP. The local
NAACP's biggest victory came in 1944 when it convinced the
city registrar to allow all blacks to register to vote. The
NAACP also began recruiting attorneys to represent black
defendants charged with crimes against whites.

A local historian of Martinsville boasted in 1933 that
"there has never been any racial disturbances in Henry
County."14 Indeed, the area had been favored by conditions
that reduced the tensions between the races. The relative
economic security of its white industrial workers prevented
resentment and despair from seething into frustrated
violence. African-Americans who were not content with local
conditions migrated to parts of the country that promised

21
greater reward. A black professional class espoused the
virtues of deference and paternalism. Yet developments in
the 1940s exposed the fragility of this racial harmony.
Some African-Americans began to challenge the social and
political practices that characterized the traditional
racial order. An increase in the black population after
World War II revealed to many whites the limits of social
control through numerical superiority. In this environment,
at the start of a new year, 1949, some of the most
fundamental assumptions of the southern racial and legal
order would be challenged.

Notes

1. Virginia G. and Lewis G. Pedigo, History of Patrick and
Henry Counties, Virginia (Roanoke, Va., 1933; reprint,
Baltimore, 1977), 299-301.

2. Ibid., 10-11; Malcolm Donald Coe, ed. , Our Proud Heritage;
A Pictorial History of Martinsville and Henry County,
Virginia, with narrative history by Irene Harlan (Bassett,
Va., 1969), 33; Dora Willie Mitchell, "A Political and Social
History of Henry County as Disclosed in the County Court
Records" (Master's thesis, University of Virginia, n.d.), 16,
24, 30; U. S. Department of Labor, Bureau of Labor Statistics,
A Statistical Summary of the Martinsville Area, Virginia
(Industrial Area Statistical Summary, no. 19, January 1944),
[5]; Martinsville-Henry County Woman's Club, Martinsville and
Henry County; Historic Views , ed. Mrs. George B. Adams
(Winston-Salem, N.C., 1976), 7; Judith Parks America Hill, A
History of Henry County, Virginia (Martinsville, Va. , 1925;
reprint, Baltimore, 1976), 7.

3. Henry County: A Proud Look Back (Bassett, Va . , 1975), 34;
Mitchell, 12-13; Statistical Summary, [5].

4. Pedigo, 40-41, 148-50; Hill, 17-18, 30-31; Mitchell, 5-6,
25-28; Elaine Marguerite Raubach, "Social Mobility in Henry
County, Virginia from 1850 to 1870" (Master's thesis,
University of Virginia, 1971), 10-11, 23-24, 27-28;

22

Martinsville Bulletin, 4 July 1976, "Places" sec, p. 1, and
"History" sec, p. 6.

5. Mitchell, 54-55, 60-61; Pedigo, 41.

6. Dorothy Cleal and Hiram H. Herbert, Foresight, Founders,
and Fortitude: The Growth of Industry in Martinsville and
Henry County, Virginia (Bassett, Va., 1970), 4; W. L. Gibson,
Jr., "Industrialization and Rural Land Utilization," Southern
Economic Journal 11 (April 1945), 354; Hill, 25-26; Coe, 19-
23, 45; Martinsville and Henry County: Historic Views , 61.

7. Cleal, 4-5, 35, 71, 142; Statistical Summary, [12]; Allen
D. Edwards, Farm Family Income and Patterns of Living: An
Analysis of Original Census Schedules and Land Classification
of Henry County, Virginia, 1940, Population Study Report No.
3 (Richmond, 1944), 13; Allen D. Edwards, Youth in a Rural
Industrial Situation: Spencer-Penn Community, Henry County,
Virginia, Virginia Rural Youth Survey Report No. 2

(Blacksburg, Va., 1940), 8; Martinsville Bulletin, 3 July
1939, "Industry" sec, p. 1.

8. Gibson, 356-57; Bureau of Population and Economic
Research, University of Virginia, Economic and Social Summary,
Martinsville, Virginia (Charlottesville, Virginia, 1948), 3,
7; E. Griffith Dodson, comp. , Cities of the Commonwealth of
Virginia as of December 1946 (Richmond, 1947), s.v.
"Martinsville" .

9. Cleal, 17-18, 74-75, 135; Statistical Summary, [8];
Economic and Social Summary, 19; William Bryan Crawley, Jr.,
"The Governorship of William M. Tuck, 1946-1950: Virginia
Politics in the 'Golden Age' of the Byrd Organization" (Ph.D.
diss., University of Virginia, 1974), Map IV.

10. Economic and Social Summary, 7-8; Bernard Peyton
Chamberlain, The Negro and Crime in Virginia (Charlottesville,
1936), 26-27. On the great migration see James R. Grossman,
Land of Hope: Chicago, Black Southerners, and the Great
Migration (Chicago, 1989) .

11. J. Harvie Wilkinson III, Harry Byrd and the Changing Face
of Virginia Politics (Charlottesville, 1968) , 9-11; Andrew
Buni, The Negro in Virginia Politics. 1902-1965
(Charlottesville, 1967), 72; David M. Chalmers, Hooded
Americanism: The History of the Ku Klux Klan, 2d ed. (New York
and London, 1981), 230-33; Benjamin Sterling Ramsey, "History
and Analysis of the Public Schools of Henry County, Virginia"
(Master's thesis, Duke University, 1946), 88, 110.

23

12. Martinsville Bulletin, 3 July 1939, city sec, p. 9; 4
July 1976, "History" sec, p. 7; and 4 June 1989, sec D, p.
10; William H. Chafe, Civilities and Civil Rights: Greensboro,
North Carolina, and the Black Struggle for Freedom (New York
and Oxford, 1980), 138; Gunnar Myrdal, An American Dilemma:
The Negro Problem and Modern Democracy (New York, 1944) , 30-
31.

13. Buni, 126; Ramsey, 129; Martinsville Bulletin, 14 January
1930, p. 8; 3 July 1939, city sec, p. 9; 4 July 1976,
"History" sec, p. 7; Armour G. McDaniel to NAACP, 11 November
1941, Box C206, Branch Files, Papers of the National
Association for the Advancement of Colored People, Library of
Congress, Washington, D.C. (hereinafter cited as NAACP
Papers) ; Application for Charter of Martinsville, Virginia,
Branch, 24 October 1941, Box C246, Branch Files, NAACP Papers;
Annual Report of Branch Activities — 1944, Martinsville,
Virginia, and Annual Report of Branch Activities — 1948,
Martinsville, Virginia, both in Box C278, Branch Files, NAACP
Papers. On the importance of fraternal organizations in
African-American life see John Dittmer, Black Georgia in the
Progressive Era. 1900-1920 (Urbana, 1977), 55-59.

14. Pedigo, 42.

CHAPTER 3
A RAPE IN MARTINSVILLE

On the afternoon of January 8, 1949, Ruby Stroud Floyd
walked through the backyard of her home in Martinsville,
Virginia, hurried across U.S. Highway 58, which led to
Danville, and entered the predominantly black neighborhoods
of East Martinsville. Although the thirty-two-year-old
housewife had only moved to Martinsville four years earlier,
when her husband Glenn accepted a position as manager of the
United Dollar Department Store, she was no stranger to this
section of town. Not only had many of the residents
purchased used clothing or home-grown vegetables from her,
they also knew her as the "Watchtower Woman" because of her
extensive missionary work for the Jehovah's Witnesses.

Despite her familiarity with the area, Mrs. Floyd had
never been to the home of Ruth Pettie, who owed her six
dollars for a secondhand suit and a pair of shoes. She
knocked on the door of Rosa Martin's house to ask for
directions, but when no one answered she walked next door to
Dan Gilmer's house. After speaking briefly to Gilmer's
wife, Nannie, in the kitchen, Mrs. Floyd came outside and
asked Gilmer if he knew where Mrs. Pettie lived. Gilmer
stopped work on the hen house he was building, took a nail

24

25
from his mouth, and scratched a crude map of the route to
the Pettie home, which was about a mile away. However,
Gilmer noticed that it was getting dark and recommended that
she wait until the following day because on "Saturday night
the people like to celebrate and have a nice time. If I was
you I wouldn't go." Mrs. Floyd insisted on continuing,
however, and Rosa Martin's eleven-year-old son, Charlie,
agreed to accompany her.

At approximately the same time, four young black men
stepped from the lobby of the Rex Movie Theater in Baldwin's
Block into the chilly winter air. One of them suggested
that they get something to drink and Howard Hairston pulled
a pint of apricot brandy from his back pocket. They also
stopped at a liquor store to buy two bottles of muscatel,
which they drank underneath the water tank along the
Danville and Western Railroad tracks, which passed through
Martinsville's black neighborhoods. After finishing both
bottles they purchased a third at Garder's Esso Station, but
since they were getting hungry they decided to save it for
later. Three of them went to Frank Hairston 's house to eat
supper, while Booker T. Millner went home to fetch his
overcoat. Detecting the smell of liquor on her son's
breath, Ida Millner warned Booker, "I don't want you to go
out any more. You're drinking." Booker promised his mother
that he was only going next door to Howard Hairston 's house,

26
but as soon as he got to Howard's he left with the others
for the railroad tracks.3

As the men continued drinking wine and apricot brandy,
they spotted Ruby Floyd and Charlie Martin approaching them.
Mrs. Floyd asked them where Ruth Pettie resided, and Booker
Millner directed her to the second house on the right hand
side of the road. She thanked the men, and as she walked
away, Joe Henry Hampton told the others that the woman
"looked good enough to hug." They halfheartedly advised
Hampton to leave her alone, but since he was more
intoxicated than any of them they assumed that he was merely
joking. About ten minutes later Mrs. Floyd and Charlie
returned. As she passed, Hampton remarked, "That woman's
got some pretty legs," and ran behind her calling, "Wait,
honey." As he put his arm around her waist she pulled away
and began running. The other men called for Hampton to stop
as he followed her out of sight.

Shortly after six o'clock Francis DeSales Grayson burst
through the front door of Ethel Mae Redd's house. Grayson
had only recently moved to Martinsville, and he lived with
his wife and five children in Mrs. Redd's small home. John
Clabon Taylor and James Luther Hairston had just stopped to
visit with Mrs. Redd, and Grayson breathlessly informed them
that "some boys got a woman up on the track." He had not
been able to get a good look at the woman, and he asked the
others to come with him to find out who she was. Hairston

27
hesitated, questioning the wisdom of the idea, but after a
little coaxing all three men left to satisfy their
curiosity.5

Shortly before Grayson arrived, his wife Josephine had
left to catch the late bus into town to see her doctor. She
was accompanied by Leola Millner, the sister of Booker T.
Millner, and John Travis Redd, who was going into town to
see a movie. As they waked along the Danville and Western
track, Ruby Floyd suddenly emerged from the darkness and
wrapped her arms around Mrs. Grayson, sobbing, "Help me,
make these boys let me alone." Startled by Mrs. Floyd's
entreaties, Mrs. Grayson pulled away from her, exclaiming,
"Don't tear my clothes off me." Joe Henry Hampton appeared
from behind an embankment and grabbed Mrs. Floyd around the
waist and dragged her away. She continued to cling to Mrs.
Grayson, pulling a button off her coat. As Redd hurried his
companions along, they passed Frank Hairston, Booker T.
Millner, and Howard Hairston standing beside the railroad
tracks as Hampton and Mrs. Floyd disappeared into some
nearby woods.

At about half past seven that evening, Mary Wade laid a
plate of hot food in front of her husband Jesse when a
sudden knock at the door startled them. Mary hesitated for
a moment, then inquired from behind a locked door who was
calling. A sobbing voice replied, "A white lady, open the
door quickly." Mary hastily unfastened the latch and opened

28
the door to find Ruby Floyd clad only in her shirt, sweater,
and a torn slip. Mrs. Floyd also had scratches on her arms,
her hair was tangled, and "her thighs were red-rubbed like."
Disturbed by the commotion, Jesse came to the door and
noticed that she had bruises on her arms and legs, mud and
dirt on her clothes, and pine needles and sticks in her
hair. Mary also thought she detected the smell of urine on
Ruby's damp clothing. In addition to her dishevelment , Mrs.
Floyd also "seemed to be scared to death." Claiming that
she had been raped by at least thirteen Negroes, she asked
the Wades to call an ambulance immediately. Like most other
black residents in the neighborhood the Wades did not own a
telephone, but Mr. Wade armed himself with a pistol and
volunteered to escort Mrs. Floyd to Prillaman's Paint Shop,
a nearby store owned by Mayor Nick Prillaman. With Mary and
Jesse supporting Ruby on either side, the trio walked a
short distance to the paint store and telephoned the
police.

Just before 8:15 P.M., Martinsville police officers T.
G. Finney and R. L. Stover, assigned to patrol car number
three, responded to the call. Neither man had much training
in crime scene investigation, and they guickly determined
that a more experienced investigator was needed. When they
radioed Martinsville police headguarters to confirm that an
assault had occurred near Prillaman's Paint Shop, Sergeant
Murray V. Barrow, a detective with the Martinsville police

29
force, heard the dispatcher take the call and immediately
left the station. When he arrived at the paint store, he
found Mrs. Floyd waiting in a squad car with the two
uniformed officers. He could see that she was nervous and
that her mouth was swollen and her arms and legs covered
with scratches. She also had splinters in her arm which
Barrow guessed were caused when she was dragged over
railroad ties. Although it was dark, Barrow convinced her
to take him to the scene of the attack. She led him along
the Danville and Western tracks for about half a mile and
indicated that she had been raped just off the track along
the eastern right-of-way. Barrow located a patch of ground
where the weeds and grass had been "mashed down" and he also
found Mrs. Floyd's change purse and watch. She told Barrow
that she had been dragged into some nearby woods and raped
again, but the moonless night made it impossible to detect
anything beneath the dense foliage.

Upon returning to the paint store, Mrs. Floyd spotted
Booker T. Millner and Frank Hairston, Jr. wandering by the
building. She told Barrow, "That looks like two of them
now." The detective ordered Finney and Stover to arrest
them. By this time additional officers had arrived and
Barrow ordered Averette T. Finney, Emory Bolejack, and an
Officer Urrie to transport the suspects to the police
station while he drove Mrs. Floyd to the hospital.

30
Neither Hairston nor Millner, both Martinsville
natives, had been in serious trouble with the police before.
Eighteen years old at the time of his arrest, Hairston had
left school in the seventh grade to work at odd jobs at the
local Woolworth's Department Store and the lumber company
where his father labored. He also found seasonal work in
Martinsville's tobacco warehouses, where he earned about
thirty dollars a week. He had no criminal record. Millner,
two weeks shy of his twentieth birthday, had been arrested
once, in 1947, for being drunk and disorderly and throwing a
rock at a car. He was fined sixty dollars and ordered to
pay for the damage to the car. He had dropped out of school
in the eleventh grade to help support his family. At the
time of the arrest he worked at a local cemetery, placing
tombstones on graves.

As the patrol car pulled out of the paint shop's
driveway onto the Old Danville Road, the officers saw two
more black men walking along the road. While Bole jack and
Urrie got out to question the men, Finney remained in the
backseat with the suspects. Noticing that Hairston had mud
and dirt on the knees and cuffs of his trousers, Finney
asked him how the stains had gotten there. "I got that on
there getting me a little piece," Hairston replied. "What's
wrong with that? Can't you get a little piece and walk down
the road without being picked up?" Although Hairston
smelled of liquor Finney did not think his statements were

31
drunken ramblings because he "could speak clear and walk
along all right."11

At 9:30 P.M. Sergeant Barrow delivered Mrs. Floyd to
the emergency room of the Martinsville General Hospital.
Dr. Joseph A. Ravenel, Dr. Paul B. Toms, and a nurse
attended her. After checking her clothes for bloodstains,
which they did not find, the physicians began a thorough
physical examination. In addition to some swelling of her
lower lip, they noted multiple scratches and abrasions on
her elbows, shoulders, knees, and buttocks, her neck, and
her right ribcage. They also found a long scratch running
from the outside of her left thigh to her knee, which
Ravenel believed had been made by a fingernail. A pelvic
examination revealed a large amount of dirt and twigs in her
pubic hair. The doctors could not detect any vaginal
trauma, but three of the four vaginal smears they examined
contained "active, motile sperm," which indicated that
"intercourse had taken place within a reasonably short
period of time." Mrs. Floyd was extremely upset throughout
the examination, freguently screaming out the details of her
attack in an incoherent fashion. Ravenel recommended that
she stay in the hospital overnight for observation, but she
insisted on leaving. At 11:30 the doctor gave her a
sedative and allowed her husband to take her home. He also
prescribed penicillin and sulfanomides to guard against
venereal disease.

32
After Sergeant Barrow left Mrs. Floyd at the hospital,
he went to the police station where Millner and Hairston
were being held. Officer Finney told Barrow about the
remarks Hairston had made and Barrow went to the
interrogation room to question the men. He saw the mud
caked on Hairston *s pants but Millner only had a little mud
around the cuffs of his pants. Barrow ordered Millner to
strip off his clothes, including his underwear, and he
examined Millner 's shorts for semen stains. Barrow found no
evidence of sexual intercourse, but he told Millner, "I
expect I better hold you anyhow." He put Hairston back into
the detention cell at the police department and drove
Millner to the Henry County jail to await further
interrogation .

Because the police were still operating on Mrs. Floyd's
statement that a dozen men had assaulted her, and only two
suspects had been apprehended, Sgt. Barrow requested
additional manpower from the Department of State Police. In
1924, like many other states in the early twentieth century,
Virginia had created a department of motor vehicles to
regulate the behavior of automobile drivers on the state's
newly-built highways. Transportation improvements wrought
by the automobile increased urban criminals' access to rural
areas, so in 1932 the General Assembly gave employees of the
commissioner of motor vehicles the status of "police
officers" and authorized them to enforce the criminal laws

33
of the state. In addition, the rapid industrialization of
areas such as Martinsville gave many rural localities urban
traits, including greater criminal activity. Because most
local police agencies and sheriff's departments were
unequipped to investigate serious crime, the legislature in
1942 created the Department of State Police to assume the
duties of law enforcement and public safety previously
delegated to the commissioner of motor vehicles.

Around nine o'clock Sergeant James H. Barnes of the
Virginia State Police received a call that a rape had
occurred near Prillaman's Paint Shop. Officially stationed
in Martinsville, Barnes was responsible for policing a four-
county area in southwestern Virginia, and he was patrolling
Floyd County when he received the call. By the time he
completed the mountainous fifty mile drive to Martinsville
it was after ten o'clock. Learning that two men had already
been taken into custody, he drove immediately to the
Martinsville Police Station. After briefly conferring with
Barrow about the progress of the investigation, Barnes
walked to Hairston's holding cell. Closing the heavy door
behind him, he informed Hairston that he did not have to
make any statements, but that Barnes would like to know the
truth about the incident. Hairston, however, claimed that
he "didn't know a thing in the world about it." Barnes left
the cell and discovered that investigators had located a
witness to the crime, Charlie Martin. After questioning

34
Charlie, Barnes led the boy to the detention cell and asked
whether he knew the man lying on the bunk. Charlie
identified Hairston by name and told Barnes, "He is the one
I told you about just now. He was down to the railroad
track."15

After sending Charlie home Barnes drove to the county
jail to interview Millner. During Millner's brief stay at
the police detention cell, however, Hairston had warned him
not to speak to the police, and he refused to reveal any
information. At about 1:00 A.M., January 9, Barnes returned
to the police station and roused Hairston from his bunk.
This time he took him out of the cell and brought him back
to the department's interrogation room where Sgt. Barrow and
another officer, D. L. Nance, were already waiting. While
Hairston slouched over a bare table cradling his head in his
hands, Barnes asked him again to "tell the truth." Hairston
also later remembered Barnes telling him that although he
could not make any promises, "he'd do everything he could to
help" him. Hairston remained silent for several minutes,
then asked if he could speak to Barnes alone. At 1:45
Barnes emerged from the room with a signed confession.

In his statement Hairston told Barnes that he, Millner,
Howard Hairston, and Joe Henry Hampton had been drinking
wine beside the railroad tracks when Ruby Floyd stopped to
ask directions to Ruth Pettie's house. Hampton had been
"the one that decided to catch the woman when she came

35
back," and he was the first to grab her as she returned from
her errand. By the time the others caught up to him, "he
was doing the act." When Hampton finished they dragged her
to an embankment where Frank Hairston and Millner had sexual
intercourse with her. Frank did not see Howard Hairston
with the woman but he assumed that he had assaulted her as
well. As he was leaving, James Hairston, John Clabon
Taylor, and "a boy they call DeSales" arrived at the scene,
but he did not know whether they had anything to do with the
attack or not.

Now that Hairston had implicated Millner in the attack,
Barnes returned to the jail to see whether Millner would
change his story. Barnes informed him that he was charged
with criminal assault against a white woman and that any
statements he made "would be used either for or against him
as the case might be." Upon learning that Hairston had
confessed, Millner replied, "If Frank told the truth about
it I reckon I just as well tell the truth." He placed the
same seven men at the scene that Hairston named in his
confession, but Millner had only seen Hampton and Hairston
with the woman. Barnes repeatedly accused Millner of having
intercourse with Mrs. Floyd, but he claimed, "I tried to go
to her but I could not." He also told Barnes that he had
given Charlie Martin a guarter in exchange for a promise not
to tell anyone he had seen him.

36
While these interrogations continued, Martinsville
police officers, Henry County sheriff's deputies, and state
troopers scoured the vicinity of the attack, searching for
suspects. Throughout the night police picked up black men
for guestioning, but except for Millner and Hairston all
were released after brief guestioning by either Barnes or
Barrow. After Barnes obtained statements from Millner and
Hairston, however, the focus of the investigation narrowed
to the seven men named in the confessions. Between 3:30 and
4:00 A.M. Officer A. T. Finney found four of the men
sleeping at their homes and brought them back to the police

19

station for guestioning.

At about four o'clock in the morning John Clabon Taylor
met Sergeant Barnes in the interrogation room. Only twenty-
one years old with a fourth grade education, Taylor had
spent his boyhood in Martinsville, but he later worked for
some time as a bellboy in a Virginia Beach hotel. Twice he
had been arrested by the Martinsville police. In 1944 he
had been fined twenty-six dollars for a misdemeanor and a
year later charges of stealing a truck were dismissed by the
court. In 1945 Taylor had also been fined five dollars
after being arrested in Norfolk for fornication. After he
returned to Martinsville, he found jobs as a hospital

20

orderly and a tobacco worker.

Taylor had already been questioned by police during an
earlier round-up of suspects, but he had been released after

37
cursory questioning. This time Barnes informed Taylor that
he had been charged with criminal assault and that he did
not have to answer any questions. Taylor exercised this
right, declaring that he "didn't know a thing in the world
about [the attack on Mrs. Floyd]." He offered that he would
be "glad to help" if he could but he "just didn't know what
[Barnes] was talking about."

Rather than pursuing a lengthy interrogation, Barnes
decided to see whether any of the other suspects might be
willing to make a statement that would implicate Taylor.
James Luther Hairston, a twenty-year-old tobacco and
furniture worker, was waiting in another room. Although he
had also been questioned earlier and released, Hairston
proved more susceptible to Barnes's interrogation than
Taylor had. As with the others, Barnes informed Hairston
that he was charged with criminal assault and he did not
have to answer any questions, but Barnes would like some
information. Barnes also informed Hairston that other
suspects had already been arrested and given statements
detailing their roles in the attack. Hairston immediately
agreed to talk. At 4:30 Hairston signed a brief statement
implicating the same seven men mentioned in the first two
confessions. The confession did not provide many details,
but Hairston did admit that all seven of the men had "gone
to" the woman as she lay on the ground.

38
Hairston's eighteen-year-old half-brother, Howard Lee
Hairston, followed him into the interrogation room. Both
men had lived with their aunt for several years after their
mother died. Like his brother, Howard had never been
arrested and he guickly made a statement after being
informed that others had confessed. Unlike the others, he
was less specific as to who had actually assaulted the
victim. He could not recall who was on top of the woman
when he arrived, but "all of them was pulling on each other
trying to get to her next." He placed the same seven men at
the scene, and he guessed that "all of them went to the lady
and tried to [have intercourse]." More than any of the
others, however, Howard Hairston directly implicated himself
in the attack. As he explained, "When I got a chance I
tried to go to her but I could not get it in. I tried
several times to get it in but I could not." Although
Hairston apparently believed impotence was a defense for
rape, such an admission was actually much more damaging than
the others' general statements that they had "gone to" Mrs.
Floyd.23

At ten minutes to six that morning, Barnes interrogated
Francis Desales Grayson. Grayson's background differed
markedly from those of the other suspects. At thirty-seven
years of age he was sixteen years older than the next eldest
suspect, John Clabon Taylor. A United States Army veteran
who had served during World War II, Grayson was married and

39
the father of five children. While the other suspects had
all grown up in Martinsville, Grayson was a native of
Maryland who had also lived in North Carolina and New Jersey
before moving in 1948 to Martinsville. At the time of his
arrest he was employed by the American Furniture Company,
one of the area's largest employers, and he had never been
convicted of any crime.

Initially, Grayson denied any knowledge of the crime
and refused to answer any of Barnes's questions. After
Barnes informed him that "some of the other boys have told
us their part in this case," however, Grayson reconsidered
his silence. After mulling his situation for a couple of
minutes, he told Barnes, "I'll tell you the truth about it."
According to his statement, he had been walking along the
Danville and Western tracks when he heard a woman begging a
man to let her go. He continued home but later returned
with James Hairston and John Taylor to the scene, where they
joined four men in assaulting the woman. Grayson was not
sure who had initiated the attack or in what order they had
assaulted her, but "it looked like all of them went to her
before I left." Like Howard Hairston, Grayson also used an
admission of impotence to defend himself. After the last
attacker finished, he explained, "I tried to go to her but I
could not get up a hard. I tried for two or three minutes

25

but was unable to do the job."

40
By the time Grayson finished making his statement, dawn
had broken. Soon the Sunday morning paper would bring news
of the attack to the townspeople and churchgoers would be
trading gossip following the early services. Fearing that a
mob might soon form on the courthouse lawn, Barnes ordered
the men to gather their belongings because "we don't know
what the feeling is going to be here and we are going to do
everything we can to protect you." Barnes and some other
officers then transported the suspects to the Patrick County
jail in Stuart, about twenty-five miles west of
Martinsville. Meanwhile, the remaining officers would
continue to search for the remaining suspect, Joe Henry
Hampton.

The suspects arrived in Stuart around 7:30 A.M. Before
taking them to their cells, Barnes assembled all six men in
the Patrick County sheriff's office. Since John Taylor had
refused to cooperate, he asked the remaining men to
describe, in Taylor's presence, "exactly what part [Taylor]
had in this case." Before anyone spoke, Taylor interrupted,
"Wait a minute. I don't want anyone to tell on me. I was
right with them, in it just like they were. I don't want
them to tell on me at all. I'll tell the truth."27 Taylor
admitted that he and the six other suspects had assaulted
the woman. Apparently aware of Mrs. Floyd's work with the
Jehovah's Witnesses, Taylor warned "the other boys that that
was a Christian woman and it would cause us some trouble. .

41
. . That if she was a drunk we might get by with it but I
could tell from the way that she talked that she was a good
woman." The other men, however, reminded him that if they
were caught, he would be implicated as well. Faced with
this dilemma, Taylor decided to join the others, admitting
to Barnes, "I was the last one to get it from her."28

Meanwhile, Sgt. Barrow returned to the crime scene to
see whether the daylight would yield any more clues. The
previous evening, Mrs. Floyd had indicated that part of the
assault had taken place in a wooded area about fifty yards
from the railroad tracks, but the area had been too dark to
search. This time, Barrow found a low gully in the woods
where it looked like a struggle had occurred. Lying nearby
he found a man's grey felt hat. A uniformed officer who

29

accompanied Barrow also discovered an earring.

About eight o'clock that morning, Dr. Ravenel received
a call from Glenn Floyd. Floyd told Ravenel that his wife
was "pretty much torn up," that she was very upset and had
not slept all night. Ravenel admitted Mrs. Floyd to the
hospital immediately, where he diagnosed her as suffering
from "nervousness and generalized muscular aching along the
inner aspect of both thighs." He placed her in a private
room, prescribed barbiturates and heat treatment, and
restricted visitation to her immediate family.

For the next twenty-four hours law enforcement officers
continued the search for the remaining suspect, Joe Henry

42
Hampton. More than any of the other suspects, Hampton had
good reason to fear the police. Only nineteen years old, he
had already been convicted of grand larceny in the
Martinsville Circuit Court two years earlier after he had
stolen some money, clothing, and a watch from his father.
His probation officer, P. C. Shields, reported "considerable
difficulty" in supervising his probation, and it was later
revoked after he repeatedly missed conferences and
threatened to move to Ohio. Hampton's mother had died when
he was eight years old, and in 1943 he had moved with his
father to the outskirts of Henry County, where he quickly
earned a reputation as a truant and a troublemaker. His
probation officer reported that he had considerable
difficulty holding a job and had earned only $121 in the

31

seven months of his supervision.

Early Monday morning, January 10, Hampton approached
Mary Wade's house after sleeping in the woods all weekend.
Mrs. Wade told him that the police were looking for him and
asked him what he had done. Hampton admitted that he and
some others had raped a woman twice because they had "been
drinking some old wine and stuff and it just had them all
upset." Mrs. Wade advised him to surrender to the
authorities "because you couldn't get away," and Hampton
agreed to wait on the porch while her husband telephoned the
police on his way to work. At around nine o'clock, Sgt.
Barrow and two other officers drove to the Wades' house and

43
arrested Hampton. Martinsville Police Chief Harold W.
Stultz called Sgt. Barnes and asked him to come to the

32

police station to conduct the interrogation.

According to Hampton's statement, he, Millner, Howard
Hairston, and Frank Hairston were drinking wine on the
railroad tracks on the night of January 8. After giving a
"white lady and a little colored boy" directions to Ruth
Pettie's house, they "all planned to get her when she came
back." Conseguently, Hampton grabbed her while the others
"pushed the lady down." As the men fought among themselves
"to see who would be the first to get it from her," the
woman "was pushing back and trying to keep us from carrying
her down the ridge." After they dragged her forty or fifty
yards into the woods, the four men raped her, along with
Grayson, Taylor, and James Hairston, who had arrived on the
scene. The woman continued to "put up a big scuffle . . .
trying to get loose from the boys [and] begging us not to do
anything to her." Not only did Hampton's detailed statement
corroborate many aspects of Ruby Floyd's story, it also
refuted the claims of some of the other suspects that Mrs.
Floyd had consented to intercourse.

By this time, news of the crime had spread throughout
the city. Offenses as serious as gang rape rarely occurred
in Martinsville, prompting some concern and uncertainty
about the possible public reaction. Circuit Court Judge
Kennon C. Whittle, concurring with Sgt. Barnes's assessment

44
of the prisoners' safety, ordered that they remain jailed
outside Henry County "in order that there would be no
unfortunate happening in the city." Whittle did not fear
any mob violence, he claimed, but he insisted that the state
had a responsibility "to protect these men from any trouble
that might happen." As he later recalled, "God knows we
didn't want anything to happen in the way of a lynching."
Consequently, Grayson and Taylor remained in the jail at
Stuart, Hampton was taken to Chatham, about thirty miles
northwest of Martinsville in Pittsylvania County, while
Millner and the Hairstons were confined in the Roanoke city
jail, forty-five miles north of Martinsville.

The nature of the crime undoubtedly stirred deep
emotions among local citizens. The Henry County jailor
later revealed that he was so affected by the viciousness of
the attack that had a mob demanded the key to the jail, he
would have relinquished it. Nevertheless, a lynch mob never
materialized. For one thing, the swift decisions of Barnes
and Whittle to separate the prisoners at distant locations
increased the difficulty of organizing violence against the
men. More importantly, the speed and efficiency with which
law enforcement officials captured the seven men assured the
townspeople that the legal system could adequately handle
the crisis. Chief Stultz proudly reported that "every man
on the department worked long and hard to see that the
defendants were brought to justice; and I think it is a

45
credit to them that not one of the seven men remained out of
custody for more than a day and a half."

More than a month passed before the seven defendants
entered the Martinsville Trial Justice Court for their
preliminary hearing on February 17. Several factors
contributed to the delay. On January 22, as required by
Virginia law, Judge Whittle appointed seven attorneys to
represent the defendants at trial and all preliminary
proceedings. Six days later, Joseph C. Whitehead informed
the Martinsville prosecutor's office that his client, Joe
Henry Hampton, would waive his preliminary hearing. Not
until February 1, when the seven attorneys convened to

formulate a defense strategy, did the lawyers request a

, . . , . 36
preliminary hearing.

At the same time, rumors began to circulate that Mrs.
Floyd would drop the charges because of her religious
objections to testifying. Commonwealth's Attorney Irvin W.
Cubine vehemently denied these reports, assuring reporters
that "both she and her husband have assured me they have no
religious scruples that would keep them from prosecuting the
defendants to the fullest under the laws of the
Commonwealth."37 In fact, medical problems associated with
the attack kept Mrs. Floyd out of the courtroom until mid-
February. On January 15, after spending a week in the
hospital, Mrs. Floyd had gone to North Carolina to
recuperate at her mother's house. Ten days later she

46
returned to Martinsville General Hospital complaining of
nausea, vomiting, chills, and abdominal pain. She was also
running a temperature of 103 degrees. Dr. Ravenel detected
some swelling on the left side of her abdomen but the spot
was so tender he was unable to perform an adeguate vaginal
examination. Mrs. Floyd left the hospital on January 31
after her fever subsided, but four days later her condition
worsened and she was admitted to the Duke University
Hospital in Durham, North Carolina. In addition to treating
her for fever and nervousness, Dr. Baynard Carter ran
routine tests for trauma, venereal disease, and pregnancy.
The tests were negative for pregnancy and sexually
transmitted diseases, but he located an "inflammatory mass"
on the left side of her pelvis near the uterus caused by the
rupture of thin-walled blood vessels. The ureter running
from the left kidney to the bladder was also "displaced and
dilated." Although the fever fell rapidly after the fourth
day of observation, Mrs. Floyd remained in the hospital
until February 14 until the danger of rupture and
peritonitis had passed.

On February 17, amid an atmosphere of secrecy and tight
security, the preliminary hearing began in the Martinsville
Trial Justice Court before Judge M. H. MacBryde. The
defendants had been secretly transported into the city early
that morning, and no public notice of the hearing had been
issued. Furthermore, the usual 9:00 A.M. starting time of

47
the court had been postponed for five hours and the court
had been moved from its usual location in city hall to the
Henry County Courthouse across the street. Seventeen state,
city, and county law enforcement officers guarded the doors

39

of the courtroom.

The Virginia legislature had created the trial justice
courts in 1921. The courts not only served as a police
courts for the trial of misdemeanors and violations of local
ordinances, they also performed certain magisterial
functions for the Circuit Court, including the determination
of probable cause to hold criminal defendants for trial.
Unlike most justices of the peace or rural magistrates in
other states, MacBryde and his colleagues possessed at least
five years experience practicing law in Virginia, and they
held no other public office during their four-year terms.
Like the state police, the trial justice courts brought
efficiency and professionalism to the administration of
justice in industrializing areas of the state.

The state relied chiefly on the testimony of Sergeant
Barnes, Officer Barrow, and Mary Wade. Mrs. Wade described
Mrs. Floyd's disheveled appearance on the night of the
attack and related that she had smelled of beer or urine.
She also testified that Joe Henry Hampton had come to her
house two days after the crime, admitted to twice raping a
woman, and implicated the other defendants as well.
Barrow described his part in the investigation and told the

48
court that he had found Mrs. Floyd's change purse and watch
near the scene of the attack. Barnes read each of the seven
confessions into the record. On cross-examination, Stephen
Martin, attorney for Howard Hairston, challenged the
validity of the confessions, asserting that Barnes had
promised the defendants leniency if they confessed. Barnes
denied the allegation, however, because he "knew the
statement wouldn't be no good under those circumstances."42

Legally, the purpose of a preliminary hearing is to
allow a magistrate to determine whether there is sufficient
evidence against the accused to justify holding the suspects
for trial. In practice, the hearing also provides the
defense with an opportunity to assess the strength of the
prosecution's evidence and the reliability of the state's
witnesses. According to its assessment of the strength of
the case, the defense may choose either to allow the state's
case to stand on its merits or it may actively challenge the
evidence.43 In the Martinsville case, the defense attorneys
elected to challenge the medical evidence of rape and the
reliability of the complaining witness.

In questioning the two physicians who attended Mrs.
Floyd after the attack, the defense sought to minimize the
severity of her injuries and demonstrate the inconsistencies
in her story. Dr. Paul Toms told Clarence Kearfott,
attorney for James Hairston, that the patient's "general
condition was fairly good," that she "was not shocked," and

49
that she had "minor abrasions" on her limbs. Kearfott asked
Toms whether the "small quantity" of sperm or the "very-
slight bruise" inside her vagina indicated how many times
she had intercourse that evening. Toms replied that such
conditions could not provide any reliable indication, but he
noted that Mrs. Floyd's memory of the number of men who had
intercourse with her "varied . . . from time to time. . . .
At one time she said about 12 and another time she said
about 10." Dr. Ravenel was more reluctant to characterize
the injuries as minor, but he did state that none of the
injuries was bleeding "at the time I saw her." He also
testified that she had claimed that "anywhere from six to a
dozen" men had attacked her in the woods.

The defense called Ruby Floyd as its final witness.
This strategy posed some risk, because any statements that
Mrs. Floyd made became part of the official record against
the defendants. Nevertheless, the defense attorneys
apparently believed that if they could expose enough
inconsistencies in her story they might save some of the
defendants from criminal prosecution. Even if Judge
MacBryde declined to dismiss the cases for insufficient
evidence, a poor performance by the victim on the witness
stand might persuade the prosecution not to seek the death
penalty.

W. L. Joyce, attorney for DeSales Grayson, conducted
the examination for the defense. Joyce first questioned

50
Mrs. Floyd's judgment in entering the Negro section of town
on a Saturday night, especially after residents of the
neighborhood had advised her not to. Judge MacBryde,
however, refused to permit this line of guestioning.
Second, Joyce elicited an admission from the victim that she
had not called for help when she was first accosted on the
railroad tracks because "I figured I could get away from
them" and "it was too far from anyone's house." But why,
Joyce gueried, did she not scream for help once they had
captured her? At this point Mrs. Floyd, who had remained
calm throughout the guestioning, began to sob. "I didn't
try to holler," she cried, "because they told me they'd kill
me if I did."45

Joyce also exposed Mrs. Floyd's inability to identify
all of her attackers because part of the attack took place
after nightfall. Nor could she state definitely how many
men attacked her, or how many times she had been raped. "I
couldn't count the times," she testified. When asked if she
recognized anyone in the courtroom she indicated Joe Henry
Hampton as the first attacker, and she positively identified
DeSales Grayson as the last man to assault her. Asked to
name her second attacker, she wavered between James Hairston
and Booker Millner, stating only for sure that "it was one
of those." Joyce prodded her to select one definitely, and
when she failed he asked her, "You don't know which one, do
you?" "No, sir," Mrs. Floyd admitted.46

51
Despite the defense team's attempts to call her
credibility into question, Mrs. Floyd steadfastly resisted
any implications that she had been a willing participant in
the incident. She had not screamed, she repeatedly
asserted, because the attackers had threatened to kill her.
When she managed to briefly escape she called to passersby
for help, but they ignored her entreaties. She physically
resisted their advances and "begg[ed] all the time to please
turn me loose and let me go home." She did not run from her
attackers once they finished, she explained, because "I was
completely exhausted. I was almost paralyzed. I just could
not run."47

Finally, Joyce questioned her "calm and composed"
demeanor after she checked into the hospital. Mrs. Floyd
denied such a state of mind; she had been "in a nervous
condition" and "was all to pieces." But had she not invited
company to her hospital room after the attack, he countered,
despite her doctors' suggestions that she see no visitors?
Not "too much company," she replied, only "friends and
relatives — mother and father and people." When Joyce
continued to press the issue, W. R. Broaddus , one of the
prosecutors, objected that Joyce was attempting to impeach
his own witness. Judge MacBryde, who was quickly losing
patience with Joyce's tactics, agreed because Joyce had not
announced Mrs. Floyd as an adverse witness, a tactic that
would have given him latitude to challenge her testimony.48

52
In any case, MacBryde continued, he could not understand how
her actions at the hospital, hours after the attack, had any
bearing on the case. Joyce tried to explain that her state
of mind was relevant to her credibility, but MacBryde cut
him short. "I'm going to send this on to the grand jury on
[the basis of] the confessions," he announced. "You're just
wasting time." MacBryde ordered the men held without bail
and directed Chief Stultz to return them to out-of-town
jails until the grand jury of the Martinsville Circuit Court

49

had acted. On April 11, almost two months later, the
grand jury, composed of four white men and three African-
American men, returned eight counts of indictment against
the defendants, charging each man with raping Mrs. Floyd and
with aiding and abetting her rape by the other defendants.50

To most of Martinsville's white community, the arrest,
pretrial processing, and indictments of the seven suspects
represented the best attributes of the administration of
justice in the modern South. In stark contrast to
stereotypical notions of Southern justice, the community did
not rely on crude methods of racial control, such as mob
violence or kangaroo courts. The legal system continued to
enforce codes of racial behavior, but through modern police
methods and legal processes that emphasized the preservation
of community stability and social order.51

In Martinsville, the local law enforcement
establishment preserved community stability by rapidly

53
apprehending the suspects. At the same time, Chief Stultz,
Judge Whittle, and Judge MacBryde ensured that the suspects
were not subject to mob violence by ordering the suspects
removed from local jails and conducting judicial proceedings
with a minimum of publicity. In addition, local officials
were not pressured to hurry the legal process to satisfy
demands for immediate retribution. More than a month passed
between the arrests and the preliminary hearing; nearly
another two months passed before the grand jury indicted the
suspects.

Most significantly, local authorities did not act as
extensions of the mob. Instead they displayed a
professionalism that was increasingly characteristic of
police departments after World War II. Although one
critical observer, Daily Worker reporter Mel Fiske,
cynically commented that police "arrested practically every
male over 14 who had mud on his shoes," only the seven men
implicated by the victim or the suspects' confessions were
actually arrested. Other African-Americans were detained
only long enough for brief questioning. Officer Barrow
launched an immediate search of the crime scene for
evidence, and he quickly transported the victim to
Martinsville General Hospital where physicians obtained
physical evidence of rape.

In addition, Chief Stultz relied on the state police to
conduct the investigation. While officers on the

54
Martinsville police force received rudimentary professional
training, their primary mission emphasized the preventive
functions of community patrol and order maintenance. By
contrast, Sergeant Barnes had received training in modern
methods of scientific crime detection.53 Consequently,
Stultz gave Barnes broad authority to conduct the
investigation, and Barnes assumed the most important task:
interrogating the prisoners. Not only was Barnes schooled
in the law regarding the admissibility of confessions, he
was certainly familiar with the most efficient techniques of
interrogation. He obtained the first six confessions within
the space of six hours, and obtained Joe Henry Hampton's
confession less than two hours after he was arrested.

To the white citizens of Martinsville, the local law
enforcement system had restored stability to the community
without violence. To African-American observers, however,
the proceedings stirred troublesome reactions. Shortly
after the preliminary hearing, a reporter from the Richmond
Afro-American, one of the state's leading African-American
newspapers, identified the Martinsville case as one that
bore "all the earmarks of the late Scottsboro, Ala. mass
trial." Admittedly police officers and judges had
supervised the capture of the defendants with apparent
regard for their due process rights and with a minimum of
racial rhetoric. But while Martinsville's law enforcement
community had demonstrated that black suspects could be

55
arrested and arraigned in an equitable fashion, the question
remained whether they could be tried and punished in a
Southern courtroom without reinforcing traditional codes of
racial behavior.

Notes

1. Daily Worker, 31 May 1949, p. 1; Harold C. Woodruff to
Charles P. Chew, 7 June 1949, Box 115, Executive Papers,
Governor John S. Battle, 1950-1954, Virginia State Library and
Archives, Richmond, Virginia (hereinafter cited as Battle
Papers) ; Transcript of Testimony, Commonwealth v. Frank
Hairston, 23-24. All transcripts are located in the clerk's
office of the Martinsville Circuit Court, Martinsville,
Virginia.

2. Woodruff to Chew, 1-2; Frank Hairston Transcript, 110-15;
Transcript of Testimony, Commonwealth v. Francis DeSales
Grayson, 61-62; Transcript of Testimony, Commonwealth v. John
Clabon Taylor and James Luther Hairston, 98-105.

3. Frank Hairston Transcript, 117-18, 126-27; Transcript of
Testimony, Commonwealth v. Booker T. Millner, 76-78, 99.

4. Transcript, of Testimony, Commonwealth v. Joe Henry
Hampton, 32, 92-93; Frank Hairston Transcript, 118, 130-32;
Millner Transcript, 78.

5. Grayson Transcript, 55-60; Taylor and Hairston Transcript,
64-68, 114-15.

6. Hampton Transcript, 36-37, 68-72, 111-17; Frank Hairston
Transcript, 89-103.

7. Hampton Transcript, 39-40, 52-54; Frank Hairston
Transcript, 149-51; Transcript of Testimony, Commonwealth v.
Howard Hairston, 34, 48-50.

8. Hampton Transcript, 72-74; Frank Hairston Transcript, 82-
86; Millner Transcript, 43-45; Taylor and Hairston Transcript,
96-97.

9. Frank Hairston Transcript, 66, 84-85; Millner Transcript,
40-41.

56

10. Daily Worker, 3 June 1949, p. 9; Woodruff to Chew, p. 5;
"A Petition to His Excellency John S. Battle, Governor of
Virginia, for Commutation of Sentence," n.d., p. 3, Battle
Papers.

11. Frank Hairston Transcript, 67; Millner Transcript, 40-41.

12. Hampton Transcript, 78-80, 82-83; Frank Hairston
Transcript, 104-5; Millner Transcript, 57-58.

13. Millner Transcript, 46-48, 80. Unlike most other states,
incorporated cities in Virginia maintained a judiciary
independent of the judicial system of the counties in which
they were physically located. Like many other smaller cities,
however, the city of Martinsville shared jail facilities with
the surrounding county. See Chester W. Bain, "A Body
Incorporate:" The Evolution of City-County Separation in
Virginia (Charlottesville, 1967), 27; Virginia Department of
Corrections, Annual Report (Richmond, 1949), 110.

14. John S. Salmon, comp. , A Guide to State Records in the
Archives Branch, Virginia State Library (Richmond, 1985) , 39-
40. On the development of state police departments in
general, see David R. Johnson, American Law Enforcement: A
History (Arlington Heights, 111., 1981), 155-66, and Bruce
Smith, Rural Crime Control (New York, 1933), Chap. 5.

15. Hampton Transcript, 60; Frank Hairston Transcript, 69-71.

16. Hairston Transcript, 71-72, 122-23; Millner Transcript,
48, 80-81.

17. Statement of Frank Hairston, Jr., File No. 149-607,
Martinsville Circuit Court.

18. Millner Transcript, 48-50, 80-81; Statement of Booker T.
Millner, File 149-606, Martinsville Circuit Court.

19. Martinsville Bulletin, 9 January 1949, p. 1; Grayson
Transcript, 39-40; Taylor and Hairston Transcript, 42-46.

20. Woodruff to Chew, 6; Petition for Commutation, 3; Daily
Worker, 3 June 1949, p. 9.

21. Taylor and Hairston Transcript, 44-47, 55.

22. Ibid., 44-49; Petition for Commutation, 3; Daily Worker,
3 June 1949, p. 9; Statement of James Luther Hairston, File
149-609, Martinsville Circuit Court.

57

23. Statement of Howard Hairston, File 149-610, Martinsville
Circuit Court; Howard Hairston Transcript, 56-59; Petition for
Commutation, 3; Daily Worker, 3 June 1949, p. 9.

24. Woodruff to Chew, 6: Petition for Commutation, 3; Daily
Worker, 3 June 1949, p. 9.

25. Grayson Transcript, 42-45; Statement of Francis DeSales
Grayson, 9 January 1949, File 149-611, Martinsville Circuit
Court.

26. Motion for Change of Venue Testimony, Hampton Transcript,
84-85, 90; Taylor and Hairston Transcript, 56.

27. Ibid.

28. Statement of John Clabon Taylor, 9 January 1949, File No.
149-608, Martinsville Circuit Court.

29. Millner Transcript, 45; Grayson Transcript, 86-88; Taylor
and Hairston Transcript, 97.

30. Frank Hairston Transcript, 105-6; Millner Transcript, 58-
59; Howard Hairston Transcript, 38-39; Grayson Transcript, 80.

31. Woodruff to Chew, 5; Daily Worker, 3 June 1949, p. 9;
Order Book, Martinsville Circuit Court, 14 January 1947, vol.
1, 27.

32. Hampton Transcript, 54-58, 61-62, 74-75.

33. Statement of Joe Henry Hampton, 10 January 1949, File
149-612, Martinsville Circuit Court.

34. Change of Venue Testimony, 74, 79, 92-93; Woodruff to
Chew, 3.

35. Woodruff to Chew, 3; Martinsville Bulletin, 10 January
1949, p. 2.

36. Martinsville Bulletin, 28 January 1949, p. 1; 2 February
1949, p. 1.

37. Ibid., 17 January 1949, p. 1; Richmond Afro-American, 29
January 1949, p. 2.

38. Hampton Transcript, 81-86; Frank Hairston Transcript,
106; Millner Transcript, 59-60; Howard Hairston Transcript,
39-40; Grayson Transcript, 81.

39. Martinsville Bulletin, 18 February 1949, p. 1; Times-
Dispatch, 18 February 1949, p. 4.

58

40. Frank William Hoffer, Delbert Martin Mann, and Floyd
Nelson House, The Jails of Virginia; A Study of a Local Penal
System, Institute for Research in the Social Sciences,
University of Virginia, no. 16 (New York, 1933), 222-23.

41. Transcript of Preliminary Hearing, Commonwealth v. Joe
Henry Hampton, 17 February 1949, pp. 2-8, copy in File al28,
Box 7, Papers of the Civil Rights Congress, Schomburg Center
for Research in Black Culture, New York Public Library, New
York, New York (hereinafter cited as CRC Papers) .

42. Preliminary Hearing Transcript, 22-40.

43. Arthur Rosett and Donald R. Cressey, Justice by Consent:
Plea Bargains in the American Courthouse (New York, 1976) , 17-
19; Wayne R. LaFave and Jerold Israel, Criminal Procedure, 2d
ed. (St. Paul, Minn., 1992), 765-72.

44. Preliminary Hearing Transcript, 15-17, 20-21.

45. Preliminary Hearing Transcript, 41-47.

46. Ibid., 45-51; Martinsville Bulletin, 18 February 1949,
p. 1.

47. Preliminary Hearing Transcript, 49-53.

48. See Edward W. Cleary, McCormick on Evidence, 3d ed. (St.
Paul, Minn., 1984), 83-85.

49. Transcript of Testimony, 54-55; Richmond Times-Dispatch,
18 February 1949, p. 4.

50. Order Book, Martinsville Circuit Court, April Term 1949,
vol. 1, 466; Daily Worker, 1 February 1951, p. 4.

51. No one has undertaken a comprehensive analysis of the
criminal justice system in Martinsville. However, Frankie
Yvonne Bailey has studied the administration of justice in
Danville, Martinsville's nearest urban neighbor. Bailey
concludes that between 1900 and 1930, efforts to maintain the
racial status quo in the legal system were subsumed within a
broader concern for order maintenance and social stability.
Frankie Yvonne Bailey, "Boundary Maintenance, Interest-Group
Conflict, and Black Justice in Danville, Virginia, 1900-1930"
(Ph.D. diss., State University of New York at Albany, 1986),
189-91.

52. Daily Worker, 31 May 1949, p. 1.

53. Smith, 153-55; Johnson, 115-17.

CHAPTER 4
"A MATTER FOR THE JURY TO DECIDE"

The Henry County Courthouse, built in 1824, epitomized
the history of Virginia's southside region. Its red brick
exterior, Doric columns, and freshly painted white portico
recalled the plantation homes whose masters the court had
served for most of its existence. Until the turn of the
century, on the first Monday of each month, the square in
front of the courthouse, which stood at the center of
Martinsville, had hosted "court day," when farmers,
plantation owners, tobacco traders, and salesmen from all
over the county met to do business, discuss politics,
observe the proceedings of the court, and socialize with
distant neighbors. A monument to Confederate veterans,
placed in front of the courthouse in 1901, greeted lawyers,
judges, and litigants as they entered the building. Inside
the second-story courtroom, portraits of Patrick Henry and
Robert E. Lee surveyed the proceedings from opposite ends of
the room. No visitor to the building during the trial of
the seven accused rapists could ignore the Southern
traditions embodied in the Henry County Courthouse.1

To conduct a trial for interracial rape in those
surroundings evoked images of Southern courts that avenged

59

60
the desecration of white Southern womanly virtue without
regard for due process or equal justice. The judges and
lawyers who frequented the courthouse after World War II,
however, respected tradition but were not bound by it. The
rhetoric of crime control and community stability replaced
prosecutorial race-baiting. The paternalistic assumptions
of the criminal law were subsumed within a broader regard
for preserving law and order. As the city's furniture and
textile industries grew to national stature the courts
became more respectful of emerging national standards of
what constituted a fair trial. The criminal justice system
that emerged in Martinsville after the war reinforced the
racial values embedded in the Southern legal system, but it
restrained the more outrageous forms of racial control.

Since 1944, Judge Kennon Caithness Whittle had presided
over this fusion of the old and the new. The fifty-seven-
year-old jurist was himself steeped in the Virginia legal
tradition. His father, Stafford Gorman Whittle, had served
on the Virginia Supreme Court from 1901 to 1919. After
graduating with a bachelor of laws degree from Washington
and Lee University in 1914, Kennon Whittle established a
practice in Martinsville with his brother, Stafford Whittle,
Jr. , specializing in civil and criminal defense. They also
represented many of Martinsville's most prominent business
interests. From 1922 to 1926 Kennon Whittle gained his
first judicial experience as a bankruptcy referee for the

61
Danville division of the U.S. District Court for the Western
District of Virginia. Whittle served on several American
Bar Association committees, as a member of the
constitutional convention that repealed the Eighteenth
Amendment in 1933, and as president of the Virginia State
Bar Association in 1940. A lifelong Democrat, he
represented his state at the Democratic National Convention
in 1932. Because of his legal credentials and his fealty to
the state Democratic party, the Virginia Assembly elected
him to the Seventh Judicial Circuit Court, located in
Martinsville, in 1944. The relaxed manner in which he
issued rulings from his leather rocking chair behind the
bench belied his swift disposition of the cases that came
before him. During his tenure on the court, none of his
rulings were overturned by appellate courts. In 1951,
Governor John S. Battle would appoint Whittle to fill a
vacancy on the Virginia Supreme Court of Appeals, and the
General Assembly would place him on the court permanently in
1954. 3

On April 19, 1949, the seven defendants indicted for
the rape of Ruby Floyd entered Judge Whittle's courtroom
with their attorneys. Before the preliminary hearing in
February, Whittle had appointed seven lawyers of remarkably
varying levels of experience. State Senator Frank P.
Burton, the oldest of the group, represented John Taylor.
In 1947, Burton had been elected to the state legislature

62
and in the following year he chaired the States Rights
(Dixiecrat) Party in Virginia. The party was comprised of
Southern Democrats who opposed the civil rights plank of the
1948 Democratic platform. William L. Joyce, DeSales
Grayson's attorney, was regarded by the chief of the
probation and parole office in Danville as "one of the
foremost defense attorneys in this entire area." Like
Burton, Joyce resided in Stuart, where their clients were
confined. Joe Henry Hampton, jailed in Chatham, was
assigned Joseph C. Whitehead, Jr., a former commonwealth's
attorney for Pittsylvania County. The four defendants being
held in Roanoke were assigned to four young attorneys from
Martinsville — William F. Carter for Frank Hairston, Claude
E. Taylor, Jr., for Booker Millner, Clarence Kearfott for
James Hairston, and Stephen D. Martin, a federal court
magistrate, for Howard Hairston. At forty-one years of age,
Carter was the eldest of the Martinsville contingent, while
Taylor had been practicing law for less than a year. The
lawyers received twenty-five dollars apiece for the three
months they represented their clients.

Irvin W. Cubine headed the prosecution team. The
forty-eight-year-old prosecutor had practiced law in
Martinsville since 1929, spent three years as the city
attorney, and became commonwealth's attorney for the city of
Martinsville in 1942. Whittle also allowed Cubine to hire
two assistants. W. R. Broaddus, Jr., elected to the House

63
of Delegates in 1946, had been Henry County's chief
prosecutor for eighteen years. Hannibal N. Joyce, Whittle's
former law partner, had served as Martinsville's city
attorney from 1937 to 1947. Both Broaddus and Joyce
represented some of the city's most prominent business
interests.

Before the proceedings began, Judge Whittle called all
the attorneys into his chambers. From the outset he
emphasized that he would insist on strict adherence to
propriety and decorum and would not permit the attorneys to
stray from the fundamental legal and procedural issues of
the case. He reminded counsel of their "duty as lawyers to
see that these defendants receive a fair and impartial trial
according to the law and evidence," and he asked the
attorneys to "play fairly with the Court." Addressing the
defense counsel, he asked the more experienced members of
the defense team to assist the younger attorneys in the
trial of their clients.

Finally, Whittle addressed the racial issues that would
inevitably arise from the case. He emphasized that the
defendants should not be treated differently because of
their race, but more significantly, he pleaded with the
attorneys to downplay the racial overtones so that community
stability would not be disturbed. The judge expressed his
regret that this "unfortunate" matter would be "made even
more regrettable due to the fact that these seven negroes

64
are charged with the rape of a white woman." Asserting the
positive state of race relations in Martinsville and Henry-
County, he reminded the attorneys that "we have in our
community a negro population of splendid citizens" who
"deplore this unfortunate happening as much, or more, than
do the citizens of the white race." He continued:

I here and now admonish you that this case must and
will be tried in such a way as not to disturb the
kindly feeling now locally existing between the races.
It must be tried as though both parties were members of
the same race. I will not have it otherwise.

Before the trials began, Judge Whittle heard the

defendants' motion for a change of venue. The crime of

which the defendants were accused, the attorneys argued,

aroused "great public indignation, feeling and anger" among

the citizens of Martinsville. Furthermore, the accounts of

the investigation published in the Martinsville Bulletin,

the city's only newspaper, were so "highly inflammatory"

that the "general sentiment of the citizens of the City of

Martinsville [had] been so inflamed by the said newspaper

accounts" that it would be impossible to "secure a jury or

juries in said City free from bias or prejudice." Finally,

the fact that the defendants had been "carried under heavy

escort and police protection" to out-of-town jails further

demonstrated that "it will be utterly impossible to have a

fair and impartial trial in the City of Martinsville."

Accompanying the petition were copies of eleven articles

that had appeared in the Bulletin between January 9 and

65
April 11 and eight notarized affidavits from citizens who
believed that the seven could not get a fair trial.8

The defense called twenty-five witnesses, eight of whom
were black, to the stand to support the petition. During
questioning the attorneys sought to establish that the
brutal nature of the crime and the articles in the Bulletin
had aroused local sentiment against their clients, that the
arrest of the defendants had created racial tensions in the
community, and that the removal of the prisoners from the
city proved they were in danger.

The first two witnesses represented the poles of
argument over the possibility of a fair trial. Cary J.
Randolph, commonwealth's attorney for Henry County,
testified that he had "observed very little race prejudice
at all in this case" and that "as many colored people as
white people had expressed themselves as being opposed to
this crime." Given the heinous nature of the crime, he had
found it "very unusual" that the newspaper coverage was
"fairly presented and lacking in any inflammatory matter at
all." Randolph admitted, however, that he had heard
"considerably more discussion" than usual to the effect that
the defendants were guilty and ought to be put to death. In
fact, he added, even he on occasion had made the statement,
"Well, they ought to get the works." Nevertheless, he
believed that an impartial jury could be impanelled in
Martinsville. When Will Joyce reminded him that seven

66
separate juries would be required if the trials were
separated, Randolph maintained that impaneling the juries
would be "more difficult than in an ordinary case, but I
think it could be done."

H.P. Williams, a black physician who had practiced
medicine in Martinsville for twenty years, was much more
skeptical of the defendants' chances for a fair trial in
Martinsville. Like Randolph, he remarked that the local
people had "acted fairer than [he] expected" and he credited
the Bulletin's temperate handling of the case as "the reason
the flames of animosity haven't been stirred." The serious
nature of the offense, however, had created a backlash
against the defendants among Martinsville blacks, who feared
that "this crime has set up something which may disturb the
racial relationship." A fair trial in the city, Williams
concluded, would be "pretty hard to do" because "I doubt
whether there is anybody in this immediate vicinity who
hasn't said to themselves or to their friends . . . what

they think ought to be done to people who had done such a

10
crime as that. "

Several of the remaining witnesses, including Mayor

Nick Prillaman, testified that a change of venue would not

be necessary, although one witness, H. Claybrook Lester,

admitted that his idea of a fair trial was "that they should

be convicted and electrocuted." Most of the witnesses had

heard their fellow townspeople express shock at the

67
brutality of the crime and some had heard them recommend the
maximum punishment if the defendants were guilty. The
witnesses believed, however, in the words of Harry Fusfeld,
"that if the jury was picked with caution they might get a
fair trial." An important factor in forming this opinion
was the time that had elapsed since the arrests and the
absence of mob sentiment. As the Reverend Chevis F. Home,
a white minister, explained, "Aroused feelings never help
clear and fair thinking." However, he noted, "the feeling
has not been as intensive as I thought it would be." The
community had "not come near expressing itself in mob
violence." In the three months that had passed since the
arrests, the people had become "very calm and very

deliberate and rational in their thinking about" the

11
crime.

Another citizen to oppose moving the trials was Dr.

Dana 0. Baldwin, the leading black businessman in

Martinsville. Baldwin probably did not believe that the

city was free from prejudice, although his privileged status

may have blinded him to the more serious inequities in the

community. He recognized, however, that the autonomy of

Martinsville's African-American community, and especially

its middle class, existed only within a range of behavior

prescribed by white elites. In order to restore racial

harmony, if not equality, Baldwin agreed that local

68
community members were competent to police transgressions of

12

the established social code.

Only four witnesses, two of them white, declared
absolutely that a fair trial would be impossible in
Martinsville. Charles M. Hart, a white man, stated that he
had already made up his mind that the defendants were
guilty, so that he would "be a little biased" if he served
on the jury. He did not think that any one else could be
more impartial. George Galloway, a black janitor, spoke in
favor of moving the trials because the defendants' families,
who lived in his neighborhood, had complained that the men
could not get a fair trial in town. George Boone, a white
World War II veteran who had lived in Martinsville for about
four years, believed that most of the townspeople had such
strong opinions about the crime that if "any mitigating
circumstances" surfaced during the trials, they "might not
be given the proper weight." Agnes Redd, a black department
store worker, went even further. She believed that because
of the magnitude of the crime, the men could not get a fair
trial anywhere.1

Some of the most compelling testimony came from
Sergeant Barnes. Barnes stated that "right after [the rape]
happened there was guite a lot" of discussion about the
crime. Since then interest in the case had died down, but
nearly everyone whom he had heard discussing the case had
expressed the opinion that the defendants were guilty.

69
However, he had "actually heard people say they didn't think
they would get but very little" punishment, and several
people had predicted that none of them would receive the
death penalty. In any event, most of the discussions had
been initiated by "irresponsible" people, so Barnes believed
that "plenty of level headed businessmen" would be available
to render impartial verdicts. Because Mrs. Floyd and her
husband were not natives of Martinsville, he added, "the
evidence we heard would have the same effect on people away
from here as here." On the possibility of a fair trial,
Barnes remarked tellingly, "I can't see where it would be
any different here than anywhere else."

On behalf of the commonwealth, Hannibal Joyce submitted
114 identical notarized affidavits from white Martinsville
residents who stated that they had heard the case of
"alleged rape" being discussed, that no "racial
difficulties" had arisen after the incident, and that the
defendants could receive "a fair and impartial trial in the
city of Martinsville."15 The state's only witness,
Martinsville Bulletin editor Kay Thompson, defended his
newspaper's coverage of the crime. From the beginning, he
testified, his policy had been not to "print anything
inflammatory or anything to create any feeling in the case."
He noted that the Bulletin had not identified the victim, or
even mentioned her race, in the initial reports. He had
also used the term "criminal assault" rather than "rape" and

70
had refrained from printing photographs of the suspects and
the crime scene, even though they were available. In fact,
he reminded the court, even "the Scottsboro case received a
greater amount of publicity" in his newspaper than had this
case. Because of his restrained approach to covering the
crime, Thompson concluded, "no mass prejudice" had arisen
against the defendants, making a fair trial possible without
moving its location.

At the close of evidence, the defense attorneys
inexplicably elected not to summarize its arguments for the
court, even though most of the defense witnesses had stated
that the defendants could get a fair trial. W. R. Broaddus
emphasized this point in his summation for the commonwealth
and pointed especially to the testimony of Dr. Baldwin.
Broaddus also argued that the defense had committed a
technical error by not petitioning for a change of venire
(the pool of persons from which the jury would be selected)
before seeking a change of venue. Since the basis of the
defendants' motion was that the court would encounter
"difficulty in obtaining jurors" from within the
jurisdiction, he asserted, the appropriate remedy would be
to summon jurors from other cities or counties. William L.
Joyce rebutted this argument, claiming that when "the
application for a change of venue is based upon the grounds
[that] there exists such prejudice and excitement against
the accused as to endanger the fairness and impartiality of

71
a trial conducted in the county," a preliminary motion for
change of venire was unnecessary. In short, he was not
arguing that "a fair and impartial jury cannot be secured"
but that "a fair and impartial trial cannot be had" within
the city of Martinsville.17

Judge Whittle denied the motion for a change of venue.
He congratulated the press and the public for "the way they
have conducted themselves in this matter." He recognized
that the community had not been silent about the case
because "it is perfectly natural that people will discuss
happenings of this kind." However, "no mass feeling against
these defendants" had developed. Securing jurors who had
expressed no opinion on the case might prove difficult, "but
we will have to cross that bridge when we get to it."
"Unfortunately," he lamented, "this race question enters
into the matter," raising the possibility that jurors might
be biased against the defendants because of the skin color
rather than their crime. He assured the attorneys that he
would "permit strenuous examination" of all prospective
jurors and would "see that any juror that goes in the box
will be free from prejudice" of any type.

Two days later, on April 21, 1949, the court convened
to begin the trial proper. At the beginning of the session,
William Joyce requested, with the assent of the other
defense attorneys, that each defendant be tried separately.
Several motives lay behind this request. Most important, if

72
the trials were severed, the juries could only hear evidence
about the activities of a particular defendant, not the
group as a whole. This was especially important for James
Hairston, John Taylor, and Joyce's client, DeSales Grayson,
because they had allegedly arrived late on the scene.
Testimony about the initial attack on the victim, therefore,
would be severely restricted in their cases. In addition,
none of the confessions could be used to implicate any
defendant except the one who had made the statement.
Severance thus meant that the prosecution would have to
prove the merits of each case, rather than relying on the
residual guilt that the most culpable defendants would cast
upon the others. By individualizing the cases rather than
emphasizing the seven as a group, the attorneys hoped that
some of the defendants might be acguitted or receive lighter
sentences than the others. Judge Whittle granted the motion

19

for severance without objection from the commonwealth.

Because of the strength of the case against Joe Henry
Hampton, the prosecutors elected to try him first. Hampton
was uniformly considered to have been the ringleader of the
attack and some of the most damning evidence concerned
Hampton's role in the crime.20 He was also the only
defendant to attempt to elude capture, hiding out in the
woods near east Martinsville for two days before
surrendering to the police. He also had the most serious
criminal record of the seven men, a fact the prosecution

73
would attempt to convey to the jury. If Irvin Cubine could
secure a quick conviction and a death sentence against
Hampton, he reasoned, the remaining convictions would fall
into place. After Hampton he would try the other three men
accused of the initial attack — Frank Hairston, Booker
Millner, and Howard Hairston — in that order, then Desales
Grayson, John Taylor, and James Hairston. The latter two
subsequently agreed to be tried jointly.

A new jury had to be selected for each trial. Every
jury pool contained at least two African-Americans, and four
blacks were called in the trials of DeSales Grayson, John
Taylor, and James Hairston. During voir dire Judge Whittle
asked the prospective jurors if any of them were related to
the victim or the defendant, if there were any reason why
they could not form an impartial opinion as to the
defendant's guilt, and whether they had any conscientious
scruples against imposing the death penalty. Most of the
black jurors were excused because they did not believe in
the death penalty and several white men were disqualified
because they had already determined that the defendants were
guilty. The defense attorneys asked whether the race of the
defendants and victim would influence the verdicts they
rendered or the penalty they would impose. Not all of the
veniremen were forthcoming in their answers. In Frank
Hairston' s trial, for instance, one prospective juror stated
that he had not expressed an opinion about the appropriate

74
sentence should Hairston be found guilty. William Carter
challenged him because he had overheard the man earlier
declare that "anybody guilty of such a crime should be" put
to death.21 The attorneys also sought to exclude any
members of the Elk's Club, which had recently contributed to
Mrs. Floyd's medical care, and the Martinsville Retail
Merchants' Association, of which the victim's husband was a
member. As the cases progressed, it became more difficult
to seat a jury as the defense lawyers inguired whether the
verdicts in the previous trials would influence their
decisions. In the final proceeding, for example, forty-
seven prospective jurors were guestioned before a panel
could be seated. The prosecutors did not guestion anyone
but they exercised their peremptory challenges to exclude
several prospective jurors, including the remaining black

22

men. As a result, all-white juries decided each case.

Testimony for the commonwealth was virtually identical
at each trial. The prosecution opened with its strongest
witness, Ruby Stroud Floyd. Under guestioning from Cubine
Mrs. Floyd recounted the full details of the attack,
beginning with her stop at Dan Gilmer's house to ask
directions. As she and Charlie Martin walked east along the
railroad track, she testified, they passed four black men
who pointed the way to Ruth Pettie's home. When she
returned, the men blocked the path and forced her and
Charlie to walk around them. As she passed, Hampton yelled,

75
"Hey, Honey" or "Wait, Honey," and grabbed her from behind.
He threw her down next to the track, lay on top of her, and
threatened to kill her if she screamed. By then the other
men had begun to hold her down and pull off her bottom
clothes. Mrs. Floyd struggled, protesting that she was a
Christian woman and that their actions were "against the

23

laws of the land . . . and against the laws of the Bible."

Hampton raped her first, penetrating her "more than once,"

then assisted the others as they assaulted her. As she

described to the court:

They were holding my legs, prizing my legs open. Every
time I pulled my legs together they said "Hold them
legs up woman." Every time I tried to move or holler
or say anything they'd slap me in the mouth and as each
one got on me he put his tongue in my mouth. They kept
my mouth covered all the times with their hands and
tongues, sucking my tongue and slobbering all over
me .

After the initial attack, the four men began quarreling

among themselves. At that moment, a man, a woman, and a

teenaged girl, all of them black, passed by the scene. Mrs.

Floyd broke away from her assailants and begged the

passersby for help, grabbing the woman's coat and pleading

for mercy. The woman, later identified as Josephine

Grayson, the wife of one of the defendants, "snatched away

and said 'Don't tear my clothes off of me.1" By this time

the attackers had caught up to her and they dragged her to

an embankment in the woods where they would not be so easily

spotted. She continued to struggle, managing to keep her

76
feet free but still unable to escape. Hampton and his
accomplices, this time joined by several more men, assaulted
her again, "every bit of twelve or fourteen times." At
three of the trials she also testified that she had felt
something penetrate her rectum.25 As her other assailants
fled, the last attacker, "a heavy set fellow," told her,
"Now when I finish with you I'm going to turn you loose."
Although she felt "paralyzed from the hips down," she made
her way to Mary Wade's house to seek help.

During all of her appearances on the witness stand Mrs.
Floyd appeared highly emotional, at times sobbing so
violently that her guestioning had to be halted. The trial
of Booker T. Millner was postponed one day because the
victim's doctor testified in chambers that her physical and
emotional condition "make it inadvisable for her to testify
on this day."27 Most of the attorneys subjected her to only
light cross-examination, probably because they did not want
to elicit any further sympathy for the victim on the part of
the jury. Claude Taylor asked only one guestion, making the
point that she was recovering from her injuries, while
Stephen Martin declined to examine her at all. Will Joyce
did not vigorously cross-examine her but his freguent
objections during the prosecution's direct examination
caused Mrs. Floyd to grow noticeably more upset. William
Carter, however, kept her on the stand for forty minutes in
an unsuccessful attempt to get her to admit that she could

77
not positively identify Frank Hairston as her second
attacker. During John Taylor's trial, Frank Burton
challenged her testimony that Dan Gilmer had not warned her
to leave the neighborhood because nightfall was approaching.
This strategy not only brought into guestion her ability to
identify the attackers in the darkness, it also implied that
she bore some responsibility for the attack by freguenting
dangerous neighborhoods after dark. It also weakened her
credibility when Gilmer later told Burton on the witness
stand that he had warned Mrs. Floyd not to continue. For
the most part, however, the defense attorneys failed to
discredit her testimony in any significant way.

The prosecution called Mary Wade, Ethel Mae Redd, and
Charlie Martin to corroborate Mrs. Floyd's testimony. Mrs.
Wade told the court about Mrs. Floyd's appearance at her
door the evening of the attack and described her disheveled
appearance. She noted that the victim's clothing was wet
and smelled like either beer or urine. At Hampton's trial
she also testified that the defendant had come to her house
two days after the crime and admitted to raping a woman.
After some prodding from Cubine, she also reluctantly stated
that when she had asked Hampton why Mrs. Floyd's clothes
were damp, he replied that some of the other men had

29

urinated on her.

Charlie Martin placed four of the men at the scene of
the crime. He testified that he had accompanied the victim

78
to Ruth Pettie's house and that upon their return, Joe Henry
Hampton, Frank Hairston, Booker T. Millner, and Howard
Hairston had accosted her. After Hampton grabbed the woman,
Millner gave Charlie a knife and told him "if anybody come
down, to cut them." When Charlie refused, Millner gave him
a quarter and warned him that if he told anybody about the
attack, he would kill Charlie. Charlie changed his story
slightly at Millner' s trial, stating that the defendant had
given him the knife after the quarter and mentioning nothing
about a death threat. After the attackers fled, Charlie
testified, he had returned home to tell his mother and,
later, the police. Ethel Mae Redd appeared only at the last
two trials to connect DeSales Grayson, John Taylor, and
James Hairston to the crime. According to her testimony,
Grayson had burst through her door on the night of the crime
and told Hairston and Taylor, who had stopped for a visit,
that "some boys got a white lady up on the track. Come on
let's go up there." One of the others (she could not
remember which one) suggested that might not be a good idea,
but then all three of them left, presumably to meet the
: four.30

The prosecutors closed each case with the testimony of
law enforcement officers and medical examiners. Officer A.
T. Finney and Detective Murray Barrow detailed the
investigation that had led to the capture of the defendants.
Sergeant Barnes read the confessions into evidence. Dr. J.

79
A. Ravenel, the physician who had examined Mrs. Floyd,
described her symptoms on the evening of the attack. When
she arrived at the hospital, he testified, she had a swollen
lower lip and abrasions on several parts of her body. A
pelvic examination revealed active sperm in the vagina but
he could not guess how many men had had sexual intercourse
with her. Throughout the examination she had appeared
"pretty well excited" and "extremely nervous," and she had
returned to the hospital the following morning complaining
of muscular aches. Since then she had been in and out of
hospitals with high fevers and abdominal pain. At Hampton's
trial Dr. Baynard Carter of the Duke University Hospital
provided additional medical testimony. He told the court
that the victim was presently under his care for a hematoma
on the left side of her pelvis caused by penetration of the
vagina or rectum. His prognosis for her recovery was "at
least a good six to nine months."

The court-appointed attorneys used different tactics
and displayed varying courtroom styles but they adopted
similar approaches to defending their clients, emphasizing
mitigating factors such as youth and intoxication. Will
Joyce painted DeSales Grayson, the only defendant who was
married or had children, as a loyal family man. In three of
the trials they also introduced the eyewitness testimony of
Josephine Grayson and Leola Millner, Booker Millner's
fourteen-year-old sister. Leola testified that she, Mrs.

80
Grayson, and John Redd had been walking along the railroad
tracks when Ruby Floyd leaped at the trio out of the
darkness and cried for help. She had seen Joe Henry Hampton
grab Mrs. Floyd and pull her into the woods. Frank Hairston
was near Hampton but had not touched the victim, while
Howard Hairston and Booker T. Millner were loitering around
the bend of the railroad track. Josephine Grayson likewise
testified that she had seen only Joe Henry Hampton grabbing
the victim. When the women were asked why they had not
assisted the victim, Leola explained that she "wasn't
nothing but a child" and that "Josephine was sick herself,"
while Mrs. Grayson replied that Mrs. Floyd had startled and
upset her. That was why she had shouted at the victim, she
explained. The prosecution called Leola to the stand in the
Hampton case because she could positively identify Hampton
as the man who had pulled the victim into the woods. Joseph
Whitehead made the error of calling Mrs. Grayson for the
defense to testify that "there wasn't any commotion" on the
railroad tracks nor was a group of men "fussing or fighting
over" Ruby Floyd. On cross-examination by Irvin Cubine,
however, she revealed that Hampton had accosted Mrs. Floyd,
who "was trying to get away," and took her down the track
"for a wrong purpose."32

Four of the defendants testified in their own behalf:
Joe Henry Hampton, Booker T. Millner, James Hairston, and
Frank Hairston, Jr. Their testimony corresponded roughly to

81
the chronology that Ruby Floyd had provided, but a few
significant differences emerged. The most legally
significant variations were their claims that none of the
men had assisted another to rape Mrs. Floyd and that the
victim had made no effort to resist. If the jury believed
these claims, they could not convict the defendants of rape,
because lack of consent was a necessary element of the
offense, or of abetting a rape.33

According to their testimony, Millner, Hampton, Frank
Hairston, and Howard Hairston spent most of the afternoon
and evening of January 8 drinking with each other. Most of
the alcohol had been consumed by the time Ruby Floyd and
Charlie Martin passed them on the railroad tracks. She
asked for directions to Ruth Pettie's house, which Millner
provided. As she proceeded, Hampton remarked to the others,
according to Frank Hairston, that the woman "looked good
enough to hug, or something." The others advised him to
leave her alone but when she and Charlie returned about ten
minutes later, Hampton remarked upon her "pretty legs" and
put his arm around her waist. She pulled away from him and
started to run but he followed her out of sight, around a
bend in the track, as the others yelled for him to stop.34

When they caught up to Hampton, they found him lying on
top of the woman, apparently having intercourse. According
to Frank Hairston she was not protesting, struggling, or
resisting in any way. Hairston claimed that he remained

82
behind to persuade Hampton to release the woman while the
other two men continued up the track about seventy feet.
Hampton told him that he had paid the woman five dollars and
did not plan to leave until he was finished. While they
continued to argue, Millner spotted Charlie Martin, offered
him a quarter, gave him a knife, and secured a promise that
he would not tell anyone what he had seen. After Charlie
left, Josephine Grayson, John Redd, and Leola Millner walked
by. Josephine warned Millner not to return to the others
but after she left he headed back toward Hampton.

Contrary to Ruby Floyd's testimony, Millner indicated
that Hampton had moved her into the woods by himself and
that no one held her down while he raped her. By the time
Millner returned to the scene, Grayson, Taylor, and James
Hairston had arrived. Hampton told everyone present, "All
you all are in it. You might as well go on and have you
some too with the lady." He added presciently, "If they
lock one of us up they'll lock us all up." Millner
testified that he went to her and exposed his genitals but
as he leaned over her she pleaded, "Please let me go. I
want to go home to my children." (The victim had no
children) . Millner claimed that he lost any urge to rape
the woman and returned to the group after only a short time.
This was corroborated by Frank Hairston 's testimony that
Millner "went up and turned and came straight back. He
didn't stay no time." The defendants agreed that Frank

83
Hairston was the third man to go to her, not the second as
Mrs. Floyd claimed, and Hairston claimed that she had not
resisted his advances. "It was just like any other woman,"
he testified. "She didn't say don't go, push me or
anything. "

James Luther Hairston provided the most complete
account of the events after he, DeSales Grayson, and John
Taylor arrived. According to his testimony, Hampton went to
the woman a second time. He had removed his shirt and he
"stayed on her a little bit longer than the rest." Howard
Hairston followed, remaining with her "about ten or fifteen
seconds," then Grayson went to her. James admitted that he
next approached the woman, unfastened his pants, penetrated
her "private parts," and completed the act of sexual
intercourse. When asked if she consented, Hairston replied,
"She didn't push me away." When he finished she asked him
to gather some clothes that she had been carrying. He
hunted around the area for the clothing and returned to find
John Taylor "getting off the lady." He had not, however,
seen Taylor having intercourse with her. Hairston gave the
woman her clothes and departed with Taylor, leaving Ruby
Floyd alone with Grayson. Throughout the incident, Hairston
testified, the woman had not resisted and only one man was
with her at any one time. The others stood watching but
they did not strike her or hold her down.37

84
Each defendant provided either an excuse or a defense
for his actions, all of them based on the explanation that a
group of young men, their reason dulled by intoxication,
became caught up in the frenzied activity of the moment.
Hampton testified that he had been so drunk from the wine
and brandy that he could not remember what he had done that
night. Millner also blamed alcohol for his part in the
assault, claiming, "I know I did wrong about going down
there fooling with the lady. I should have went and called
help. By me drinking though I don't reckon my mind let me
do it and so I ask the Court to have mercy on me." He also
denied actually having intercourse with the victim because
she had pleaded for the sake of her children. Frank and
James Hairston admitted that they had relations with the
woman but they invoked consent as a defense. Like Millner,
Frank Hairston threw himself on the mercy of the court,
pleading, "I know I was wrong to have gone with the woman.
Maybe if I hadn't been drinking I wouldn't have done what I
did do. I know I had no reason to have intercourse with the
woman. ... If you give me another chance I promise to be
a better boy, never to get into nothing else as long as I
live."38

The most controversial testimony concerned the validity
of the signed confessions. In each case Sergeant Barnes
read the confession of the particular defendant on trial.
He also related the circumstances under which each statement

85
had been made. Each man had admitted that he had taken part
in the assault and had implicated the others as well. Every
statement, he reported, had been given "without threat or
promise of reward."39 Each defendant who took the stand,
however, repudiated his confession to some degree. The
attorneys for those who exercised their privilege against
self-incrimination also raised guestions about the validity
of the confessions. When W. R. Broaddus read Frank
Hairston's confession back to him, Hairston could not
remember making most of the statements and concluded that
most of the document was incorrect. When Broaddus asked him
why he had signed it, Hairston replied, "I just wasn't
thinking at the time." Stephen Martin challenged Howard
Hairston's confession on the grounds that Hairston was
illiterate and had a speech impediment. He called Irene
Hodge, Hairston's aunt, to testify that her nephew could not
speak clearly. Barnes remained firm under cross-
examination, however, recalling that he "didn't have any
trouble understanding him" and did not have to ask Hairston
to repeat anything. Hampton testified that he had signed
the statement because "they asked me to sign" but he denied

40

ever having read the document to see what he was signing.

Two of the attorneys raised more serious objections to
their clients' written statements. During Booker Millner's
trial, Barnes testified that Millner initially claimed that
he "didn't know a thing in the world about" the crime.

86
After being informed that Frank Hairston had confessed,
Millner changed his mind, saying, "If Frank told the truth
about it I reckon I just as well tell the truth." On the
stand, Millner countered that the police had badgered him,
unrelentingly accusing him of having intercourse with the
woman, until he signed a statement. When Millner read the
typed version of his statement he informed Barnes of an
error. "Wait a minute Sergeant Barnes," he said. "You got
that wrong. I didn't say we took her up, Joe Henry took her
up on the ridge." According to Millner, Barnes had replied,
"That don't make much difference." Barnes forcefully
defended his actions on the witness stand, however. He
indicated to Claude Taylor that on his copy of the
confession he had stricken the word we and replaced it with
he, meaning Hampton. He assured the court, "I didn't want
anything but just exactly what he said. If it was wrong I
wanted to change it."

Will Joyce also questioned Barnes about inconsistencies
between Barnes's handwritten copy of DeSales Grayson's
confession, which he transcribed in the interrogation room
of the Martinsville police station as Grayson spoke, and the
typewritten copy that Grayson had signed three days later.
The prosecution entered both documents into evidence and
Barnes's recital of their contents revealed a discrepancy.
The handwritten version read, ". . .1 saw a man on a woman"
while the typed copy read, ". . .1 saw a man and a woman"

87
(emphasis added) . Joyce seized upon this difference to
impeach Barnes's motives and to question the thoroughness of
his investigation. In the most vigorous cross-examination
of the trials, Joyce forced Barnes to admit he had not
carefully proofread a crucial piece of evidence. Joyce then
queried, "Do you mean to tell the jury that with a man's
life at stake you thought so little about the accuracy of a
statement you were having him make that you didn't even read
it?" No, Barnes replied, he had simply made a typewritten
copy so that it could be read by the court more easily than
his handwriting. "In other words," Joyce challenged, "you
wanted the one you were keeping yourself to be accurate and
it made little difference what was read to the Court and
jury." Barnes responded that he thought the contents of the
two documents were identical. He was well aware of the
severity of the offense, he stated. "That was the reason I
was so particular in warning him of his rights and all so
the statement could be used." "But you weren't particular,"
Joyce countered, "about what was in the statement that might
incriminate him and send him to the chair?" Barnes
protested that Grayson himself had read the typed statement
and verified that it was a true copy, but he finally
admitted, "I should have read it." Joyce's cross-
examination of Barnes was the most effective challenge to
any prosecution witness in any of the proceedings.

88
To round out their defense the attorneys called several
character witnesses, including clergymen, former employers,
and relatives. This tactic was designed to convince the
juries, which had the final sentencing authority, to decide
upon a sentence short of the prosecution's recommendation of
death. Scott Hampton testified on behalf of his son, Joe
Henry Hampton, and Irene Hodge spoke for her nephews, Howard
and James Hairston. Frank Hairston's mother, Bessie
Hairston, turned to the jury at the end of her cross-
examination and pleaded, "I ask you all jurors to please
have mercy on my child and spare his life. I feel he was
persuaded by some means in this crime." Ida Millner blamed
herself for her son's plight. She had warned him not to go
out that night because he had been drinking but she had not
been stern enough when he insisted on going anyway. "I feel
sorry in my heart," she continued, "that I am to blame for
letting him go out." She begged the court, "I do ask you
gentlemen of the court and I do ask the Judge and the jury
to have mercy on my son please. Will you please just have
mercy. Judge, with a grieving heart I ask you to please
help me." As she made this appeal, reported the local
newspaper, Booker Millner "broke into loud sobs with his
head bowed on a table."

In their summations to the jury the defense attorneys
echoed this theme, urging the jurors to exercise fairness,
mercy, and leniency. Clarence Kearfott pointed out some

89
minor mistakes in Ruby Floyd's testimony and suggested that
her memory of specific details of the crime might be in
error. Claude Taylor, who represented Millner in the third
trial, told the jury that the prosecution had tried its two
strongest cases first "in order to establish a precedent of
punishment" and he urged the jurors to consider only the
specific evidence in Millner 's case. Kearfott and Frank
Burton, who represented the defendants in the last trial,
also argued that their clients were less culpable than the
earlier defendants. Some of the lawyers explicitly
acknowledged the racial aspects of the case. For example,
Stephen Martin, counsel for Howard Hairston, asked the jury
to demonstrate that "a man who deserves mercy is given it
regardless of his color." Because of the strength of the
prosecution's evidence most of the lawyers implicitly
conceded the guilt of their clients and sought to avoid the
death penalty by concentrating on mitigating factors such as
youth, drunkenness, and remorse. John Taylor confirmed this
strategy when he whispered during jury deliberations, "I
have never wanted ninety-nine years so much in my life as I
do now." Certainly the attorneys in the later trials
realized that the pattern of convictions made acquittal for
any of the men unlikely.

The prosecutors emphasized the severity of the crime
and the strong performance of the complaining witness, Ruby
Floyd, under difficult conditions. The confession evidence

90
alone, they asserted, proved that the defendants were guilty
of attempted rape at least. They also denied the existence
of any mitigating circumstances. The crime was "so crude
and cruel," Hannibal Joyce argued at Grayson's trial, that
the state sought the supreme penalty. "This crime deserves
the highest degree of punishment under law, which is death,"
Irvin Cubine thundered at Howard Hairston's trial. The
mention of the death penalty so upset Janet Taylor that
during her son's trial she fainted and had to be driven home
in an ambulance.45

At the end of closing arguments Judge Whittle
instructed the jury on the elements of the crime of rape
necessary to find a defendant guilty. In Virginia, he
explained, rape was defined as the carnal knowledge of any
woman over sixteen years of age against her will by force.
Force did not reguire the victim to physically resist if
"the mind and will of the female were overpowered by fear."
Penetration was a necessary element of the crime, but the
penetration could be "ever so slight." The jury could also
find the defendant guilty of attempted rape, if it believed
all elements but penetration had occurred; aiding and
abetting a rape; or assault and battery. He informed the
jurors that the law presumed a defendant innocent until the
commonwealth proved beyond a reasonable doubt, not a mere
suspicion or probability, that he was guilty. In weighing
confession evidence, the jury was the sole arbiter of

91
credibility and could consider the circumstances in which
the statement was given to weigh reliability. It was solely
the power of the jury, he reminded them, to assess a penalty
for the crime. Rape was punishable by five years to life in
prison, attempted rape or abetting a rape by three years to
life, and assault and battery by no more than twelve years
in jail. All but assault and battery were also punishable
by death. Except in the first two trials, Whittle also
informed the jury that Virginia law prohibited any racial
distinctions when determining punishment. He refused a
defense reguest to instruct the jury to "scrutinize [the
victim's] testimony with great care and caution."

In six day-long trials held over the course of eleven
days, six separate juries found the defendants guilty of
rape and sentenced them to death. The jury in Millner's
trial took the longest time to reach a decision, one hour
and forty-seven minutes, while Hampton was convicted in half
an hour. All of the juries voted to convict on the first
ballot, but some of the later panels showed some hesitancy
about the sentences. The juries in the Millner and Howard
Hairston cases voted three times before agreeing on the
death penalty and the jury in the last trial, of Taylor and
James Hairston, took two ballots.

On May 3, 1949, Judge Whittle officially pronounced
sentence upon the defendants. Before he passed judgment, he
asked the defendants whether they had anything to say. Four

92
of them replied negatively but Grayson, Taylor, and Millner
expressed dissatisfaction with the verdicts. Grayson
protested, "I didn't do any harm. I have told the truth. I
have always worked hard and have a family and five kids."
Taylor continued to argue that he had been forced into the
crime by the other men. Hairston informed the court, "I
don't feel like I should be punished for rape." Whittle
replied tersely to these complaints, "That was a matter for
the jury to decide." He scheduled the first four defendants
to be executed on July 15 and the remaining three men on
July 22. "It is my prayer that God have mercy on your
soul," he added. He noted that he had allowed more than
sixty days to give them an opportunity to exhaust their
legal appeals, commenting, "If errors have been made I pray
God they may be corrected."

The following morning, for the first time in the course
of the proceedings, large crowds demonstrated an interest in
the case. Several hundred people crowded into the
courthouse sguare and leaned out of office windows to catch
a glimpse of the prisoners as they were transported from the
Henry County jail to the Virginia State Penitentiary in
Richmond. The outcome of the cases had received a great
amount of publicity around the state because the seven death
sentences set the stage for an execution record in Virginia.
Around 11:30 A. M. prison guards led Taylor and Grayson,
both handcuffed with their legs shackled together, from the

93
basement of the jail into a transport van with barred
windows parked in the driveway. Joe Henry Hampton, manacled
by himself, followed, then the shackled pairs of Frank and
James Hairston and Booker T. Millner and Howard Hairston
were led to the van. Sheriff's deputies cleared a path
through the crowd as five armed state guards drove the men
to await their fate in Richmond. A9

At the conclusion of the trials Judge Whittle had told
the lawyers for the prosecution and defense, "You gentlemen
. . . have held high the great traditions of the legal
profession. You have fairly, fearlessly and ably
represented your respective sides, for which I am deeply
grateful." Harold Woodruff, the chief probation officer
from Danville who had observed the proceedings, believed
that the defense attorneys had "contested every inch of
legal ground." Another observer, a reporter from the
communist-supported Daily Worker, treated defense counsel
less charitably. Their performance, he claimed, had been
"scandalous." They "stood idly by while the prosecution,
the judge and the all-white jury with unbelievable [speed]
railroaded the seven to a death sentence." In any other
city, he asserted, "they would be confronted with charges to
disbar them."50

In truth, the guality of the defense varied widely from
one attorney to another. Joseph Whitehead, who had the most
difficult client to represent, provided a weak defense of

94
Hampton. He only cursorily cross-examined the state's key
witnesses and his closing arguments merely emphasized
Hampton's intoxication, lack of education, and poor
upbringing. Clarence Kearfott and Frank Burton failed to
challenge minor discrepancies in the handwritten and typed
copies of the confessions of James Hairston and John Taylor.
However, they subjected Ruby Floyd to vigorous cross-
examination and produced evidence from another witness that
she had lied on the stand when she claimed she had not been
warned to stay out of the black neighborhoods of
Martinsville after dark. William Carter also challenged the
victim's credibility by demonstrating that her testimony had
changed from the preliminary hearing to Frank Hairston 's
trial. Claude Taylor, fresh out of law school, appeared to
be overwhelmed by the duty of representing Booker T. Millner
in a capital case. He was the first attorney, however, to
alert a jury to the prosecution's implicit strategy of
building on earlier verdicts to establish a precedent of
death sentences for all of the defendants involved in the
crime. The defense strategy of avoiding the death penalty
rather than seeking acquittals exacerbated the difficulties
of representation because, unlike a finding of guilt, which
reguired evidence beyond a reasonable doubt, the jury had
virtually unlimited discretion in sentencing. Nonetheless,
the attorneys recognized that their clients' best hope lay
in some higher court, and with the possibility of appeal in

95
mind each attorney made timely and appropriate motions and
objections.

Will Joyce presented a particularly spirited defense of
Desales Grayson, prompting the Martinsville Bulletin to
characterize the proceeding as "marked with more legal
fencing than the previous trials." He renewed the motion
for a change of venue, as had Stephen Martin in the
preceding trial, but Judge Whittle denied both motions. He
successfully excluded from evidence any testimony about the
attack on Ruby Floyd before his client allegedly arrived on
the scene. Throughout Hannibal Joyce's opening statement he
objected five times when the prosecutor mentioned the
initial attack. Kearfott and Burton employed the same
objection during Ruby Floyd's testimony in the subseguent
trial. Will Joyce also portrayed the victim in a more
unfavorable light than had the other attorneys. In his
opening statement Joyce told the jury that a witness would
testify that he had told the woman to wait until morning to
see Ruth Pettie, advice that she had ignored. "My wife
would not have gone down there," he told the jurors. "Your
wife would not have gone down there." Her lack of
discretion was not a defense to rape, he admitted, but it
could provide the jurors with "a picture of the type of
mentality that Mrs. Floyd has." He also warned them that
out of kindness he might not cross-examine her because she
had a tendency to break down on the stand. He urged the

96
jury to remember, however, that "a person in a hysterical
state of mind could not be absolutely accurate about
everything that she told."

Ruby Floyd's ordeal on the witness stand revealed
several patterns of racial and gender control that
characterized the mid-twentieth-century South.
Traditionally, white Southern males had invoked a
paternalistic concern for white female chastity as a
justification for the summary execution of suspected black
rapists. Lynching, they explained, not only punished blacks
for violating racial and sexual mores, it also spared
fragile women from the trauma of testifying in a public
courtroom. By the 1940s anti-lynching reformers had exposed
this rationalization as an oppressive means of controlling
blacks and women, and the legal system had assumed many of
the coercive functions formerly retained by family
patriarchs .

Under this new arrangement, Mrs. Floyd's testimony, in
addition to implicating the accused black men, served to
warn white women about the presumed dangers of stepping
outside prescribed gender roles. Many townspeople did not
view Ruby Floyd as a sympathetic figure because her
association with the Jehovah's Witnesses, an unpopular
religious sect, and her freguent missionary work in
Martinsville's black neighborhoods had already raised
guest ions about her judgment. Some observers might have

97
inferred from her testimony that had she conformed more
closely to the ideals of "Southern womanhood," which
included not straying beyond certain physical and social
boundaries, she might have avoided the assault. Her
frequent breakdowns under questioning, combined with
subsequent rumors of her confinement in a mental institution
and her husband's desertion, also vividly illustrated the
traumatic impact of the rape. Southern males might have
abandoned the pretense of chivalrously protecting female
virtue, but by placing rape victims on the witness stand
they could dramatize the consequences for women who asserted
their independence or flaunted the rules of propriety. Thus
the Martinsville trials not only punished unruly blacks who
violated racial and sexual taboos; they also reminded local
women of the imagined costs of violating established codes
of behavior for white females.

The racial values embodied in the trials also
manifested themselves in a different fashion than had
earlier cases of interracial rape. Just as the prosecutors
did not openly espouse the preservation of Southern womanly
virtue, they did not appeal to overt racism. Racial
epithets and a mob mentality, clearly evident in cases such
as Scottsboro, were noticeably absent from the Martinsville
proceedings. Local observers praised the court for
maintaining the status quo, but not in explicitly racial
terms. Instead, they commended the judge and jury for

98
preserving the general order and stability of the community.
E. A. Sale, the president of one of Martinsville's largest
textile companies, assured Governor William Tuck that
"during the trial, anyone walking by the Courthouse would
not have realized the trial was going on." The proceedings
were "handled in a most orderly manner which is certainly a
credit to the Courts of Virginia and to the citizens of
Martinsville, including all colors." John P. Smith, an
acquaintance of former Congressman Thomas G. Burch of
Martinsville, told the governor that although "we had a most
outrageous crime committed here, . . . the community
remained calm and their trial was supervised by a just judge
and every right the law affords was thrown around" the
defendants. An editorial in the Danville Bee addressed the
tendency of northerners to question the South 's ability to
try its black citizens fairly. The Martinsville cases, the
editorial retorted, were "a fine example of orderly justice
in which the common law has been applied with no greater
force to the Negro than it would have been to the white
man." It emphasized the court's attention to due process
and the "resourceful and courageous" efforts of the defense
attorneys. "The Martinsville trials," it concluded, "should
stand out in a bright light as typical of Southern justice
which has been deliberate, fair and well ordained even if
frightful in its last analysis."55

99
Nevertheless seven black men had been sentenced to die
for the rape of a white woman. The trials emphasized the
restoration of community stability rather than racial
retribution, but no one denied that a significant breach of
traditional racial mores had upset the equilibrium of the
local order. Six juries agreed that the most effective way
to restore the balance was to punish the violators of those
principles harshly. Whether that punishment translated into
a legal claim of racial discrimination, however, remained an
issue for the appellate courts.

Notes

1. Martinsville-Henry County Woman's Club, Martinsville and
Henry County: Historic Views, ed. Mrs. George B. Adams
(Winston-Salem, N.C., 1976), 89, 91; Judith Parks America
Hill, A History of Henry County, Virginia (1925; reprint,
Baltimore, 1976), 28-29; Henry County: A Proud Look Back
(Bassett, Va., 1975), 34; Dora Willie Mitchell, "A Political
and Social History of Henry County as Disclosed in the County
Court Records" (Master's thesis, University of Virginia,
n.d.), 18; Daily Worker, 1 June 1949, p. 2.

2. On the traditional approach to interracial rape in
Virginia courts see Samuel Norman Pincus, "The Virginia
Supreme Court, Blacks, and the Law, 1870-1902" (Ph.D. diss.,
University of Virginia, 1978), 243. Dorothy Cleal and Hiram
H. Herbert, Foresight, Founders, and Fortitude: The Growth of
Industry in Martinsville and Henry County, Virginia (Bassett,
Va., 1970), examines the development of industry in
Martinsville. On the emerging standards of fair trial see
David J. Bodenhamer, Fair Trial: Rights of the Accused in
American History (New York and Oxford, 1992), 101-5.

The Martinsville courts were not always immune from
racial sentiment. In 1900, for instance, Charles Hairston was
sentenced to death without benefit of counsel for the rape of
a white girl after every member of the Henry County bar
refused to represent him. Pincus, 350.

100

3. "Memorial: Honorable Kennon Caithness Whittle," 209 Va.
ci, ci-cvii; Martinsville Bulletin, 4 July 1976, "People"
sec, p. 18; Charles Liebman, ed. , Directory of American
Judges (Chicago, 1955), n.p. ; Daily Worker, 1 June 1949, p.
2.

4. Order Book, Martinsville Circuit Court, January Term 1949,
vol. 1, 456; Harold C. Woodruff to Charles Chew, 7 June 1949,
Battle Papers; Martindale-Hubbell Law Directory, vol. 2, 82d
ed. (Summit, N.J., 1950), 1732, 1740, 1756; William Bryan
Crawley, Jr., "The Governorship of William M. Tuck, 1946-1950:
Virginia Politics in the 'Golden Age' of the Byrd
Organization" (Ph.D. diss., University of Virginia, 1974),
429; Clarence P. Kearfott, letter to author, 15 July 1986
(copy in possession of the author) .

5. Woodruff to Chew, 4; Martinsville Bulletin, 28 January
1949, 1; Daily Worker, 14 January 1951; Martindale-Hubbell Law
Directory, vol. 2, 82d ed. , 2860; Martindale-Hubbell Law
Directory, vol. 3, 96th ed. (Summit, N.J., 1964), 6696.

6. Transcript of Testimony, Commonwealth v. Hampton, Part I-
-Change of Venue, 2-4.

7. Ibid., 2.

8. Petition to Move for Change of Venue, Joe Henry Hampton
File, No. 149-612, Martinsville Circuit Court, Martinsville,
Virginia; Change of Venue Testimony, 265.

9. Change of Venue Testimony, 47-54.

10. Ibid., 67-71.

11. Ibid., 66-67, 102-3.

12 . On the response of southern black community leaders to
racial crisis see Frankie Yvonne Bailey, "Boundary
Maintenance, Interest-Group Conflict, and Black Justice in
Danville, Virginia, 1900-1930" (Ph.D. diss., State University
of New York at Albany, 1986), 106, 159-60; and George C.
Wright, Racial Violence in Kentucky, 1865-1940: Lynchinqs, Mob
Rule, and "Legal Lynchinqs" (Baton Rouge and London, 1990) ,
295-96.

13. Change of Venue Testimony, 103-6, 115-16, 119-20.

14. Ibid., 82-88.

15. All of the affidavits are contained in the Joe Henry
Hampton File, No. 149-162, Martinsville Circuit Court.

101

16. Change of Venue Testimony, 255-59.

17. Ibid., 259-65.

18. Ibid., 265-67.

19. Hampton Transcript, 7-8. On the law and strategy of
severance see Wayne R. LaFave and Jerold Israel, Criminal
Procedure, 2d ed. (St. Paul, Minn., 1992), 765-72.

20. Woodruff to Chew, 4.

21. Frank Hairston Transcript, 12-13.

22. Ibid., 7-23; Hampton Transcript, 9-30; Millner
Transcript, 7-17; Howard Hairston Transcript, 9-26; Grayson
Transcript, 8-22; Taylor and Hairston Transcript, 10-41.

23. Hampton Transcript, 30-34.

24. Ibid., 35.

25. Frank Hairston Transcript, 30; Millner Transcript, 25;
Howard Hairston Transcript, 33.

26. Hampton Transcript, 35-39; Frank Hairston Transcript, 25-
32.

27. Order Book, vol. 1, 484.

28. Frank Hairston Transcript, 32-46 ; Millner Transcript, 27;
Howard Hairston Transcript, 38; Taylor and Hairston
Transcript, 81-88, 103-4; Martinsville Bulletin, 21 April
1949, p. 1; 22 April 1949, p. 1; 27 April 1949, p. 1; and 28
April 1949, p. 1

29. Hampton Transcript, 50-59.

30. Frank Hairston Transcript, 48-53; Millner Transcript, 33-
34: Grayson Transcript, 56-57; Taylor and Hairston Transcript,
66.

31. Millner Transcript, 57-61; Frank Hairston Transcript, 65-
68, 104-7; Hampton Transcript, 72-78, 82-86.

32. Grayson Transcript, 32-32a: Frank Hairston Transcript,
90-97; Howard Hairston Transcript, 70-84; Hampton Transcript,
68-72, 111-17.

33. Va. Code Ann. (1942), ch. 173, sec. 4414.

102

34. Hampton Transcript, 91-92; Frank Hairston Transcript,
117-18, 130-32.

35. Frank Hairston Transcript, 118-21, 132-33; Millner
Transcript, 178-79.

36. Millner Transcript, 80, 93-95; Frank Hairston Transcript,
141-42;

37. Taylor and Hairston Transcript, 116-17, 123-34.

38. Hampton Transcript, 94-95; Millner Transcript, 81, 93-
94; Taylor and Hairston Transcript, 132; Frank Hairston
Transcript, 124, 132.

39. See, for example, Frank Hairston Transcript, 71-83.

40. Frank Hairston Transcript, 147-48; Howard Hairston
Transcript, 62-63, 94; Hampton Transcript, 105.

41. Millner Transcript, 48-50, 54, 81, 95. At both the
preliminary hearing and the trial Barnes read, "... he took
her up the ridge." Ibid., 52-53; Preliminary Hearing
Transcript, 30, copy in File al28, Box 7, CRC Files.

42. Grayson Transcript, 44-55.

43. Hampton Transcript, 268-69; Howard Hairston Transcript,
93-94; Taylor and Hairston Transcript, 139-41; Frank Hairston
Transcript, 159; Millner Transcript, 99-100; Martinsville
Bulletin, 26 April 1949, p. 1.

44. Martinsville Bulletin, 27 April 1949, p. 7; 28 April
1949, p. 2; and 3 May 1949, p. 1.

45. Ibid., 28 April 1949, p. 2, and 2 May 1949, p. 1.

46. Hampton Transcript, 119-24; Howard Hairston Transcript,
95-101; Grayson Transcript, 103-14.

47. Martinsville Bulletin, 22 April 1949, p. 1; 27 April
1949, p. 1; 28 April 1949, p. 1; and 3 May 1949, p. 1.

48. Ibid., 4 May 1949, p. 1; Richmond Times-Dispatch , 4 May
1949, p. 4.

49. Martinsville Bulletin, 4 May 1949, p. 1; Richmond Afro-
American, 14 May 1949, p. 14.

50. Richmond Times-Dispatch, 4 May 1949, p. 4; Woodruff to
Chew, 4; Daily Worker, 2 June 1949, p. 4.

103

51. Hampton Transcript, 41-42, 67-68; Taylor and Hairston
Transcript, 51-63, 81-88, 98-100; Frank Hairston Transcript,
36-39; Martinsville Bulletin, 22 April 1949, p. 8, and 27
April 1949, p. 7. Michael Meltsner discusses the difficulties
of representing a defendant in a capital case in Cruel and
Unusual: The Supreme Court and Capital Punishment (New York,
1973), 69. On the importance of preserving the record for
appeal see John Kaplan and Jon R. Waltz, Cases and Materials
on Evidence. 6th ed. (Mineola, N.Y., 1987), Chap. 1.

52. Martinsville Bulletin, 28 April 1949, p. 1; Grayson
Transcript, 7-8, 24-28, 34-36; Millner Transcript, 7-9; Taylor
and Hairston Transcript, 8-9.

53. Jacquelyn Dowd Hall, Revolt Against Chivalry: Jessie
Daniel Ames and the Women's Campaign Against Lynching (New
York, 1979), 145-57, 201-6; Joel Williamson, The Crucible of
Race: Black-White Relations in the American South Since
Emancipation (New York and Oxford, 1984), 115-30, 183-89, 306-
10; Nell Irvin Painter, "'Social Equality,' Miscegenation,
Labor, and Power," in The Evolution of Southern Culture, ed.
Numan V. Bartley (Athens, Ga., 1988), 47-67. Michael
Grossberg describes a similar shift from patriarchy to
judicial administration in the field of family law in
Governing the Hearth: Law and the Family in Nineteenth-Century
America (Chapel Hill and London, 1985) , especially pages 300-
307. See also Mary Francis Berry, "Judging Morality: Sexual
Behavior and Legal Consequences in the Late Nineteenth-Century
South," Journal of American History 78 (December 1991): 837-
38, 855.

54. Susan Brownmiller, Against Our Will: Men, Women, and Rape
(New York, 1975), 231-32; Jacquelyn Dowd Hall, "'The Mind That
Burns in Each Body': Women, Rape, and Racial Violence," in
Powers of Desire: The Politics of Sexuality, ed. Ann Snitow,
Christine Stansell, and Sharon Thompson (New York, 1983), 335-
36. On the treatment of Jehovah's Witnesses see M. James
Penton, Apocalypse Delayed: The Story of Jehovah's Witnesses
(Toronto: University of Toronto Press, 1985), 130-45.
References to the victim's mental breakdown appear in Richmond
Afro-American , 10 February 1951, p. 1; and Press Release, 13
February 1951, File a233, Box 11, CRC Papers. Following the
trials several women wrote to the governor's office asking
that the death sentences be commuted because the victim had
"asked for trouble" and "violat[ed] a strict southern code."
See Bessie G. Osby to John Battle, 27 May 1950, Box 115,
Battle Papers, and Mrs. Robert Lee House to William Tuck, 29
August 1949, Box 116, Executive Correspondence of Governor
William M. Tuck, 1946-1950, Virginia State Library and
Archives, Richmond, Virginia (hereinafter cited as Tuck
Papers) .

104

55. E. A. Sale to Tuck, 9 May 1949, and John P. Smith, 25 May
1949, both in Box 116, Tuck Papers; Danville Bee, 3 May 1949,
p. 6.

CHAPTER 5
ARRANGEMENT IN RED AND BLACK

Despite the efforts of the Martinsville legal
establishment to characterize the prosecutions and
convictions as strictly a local concern, the large number of
defendants, the rapid pace of the trials, and the specter of
multiple executions ensured the case widespread outside
attention. Publicity from the African-American and radical
press and direct appeals from family members attracted the
attention of several of the nation's most prominent civil
rights organizations. As rival groups vied for control of
the case of the "Martinsville Seven," as the men came to be
known, they also renewed a decades-old debate over the
appropriate methods of combatting racial discrimination in
the United States.

African-American journalists almost unanimously
criticized the guilty verdicts. The Pittsburgh Courier, one
of the nation's leading black newspapers, likened the
"sentence-a-day" case to the Scottsboro affair and
characterized the evidence presented at the trials as "a
series of contradictions and perjury."1 The Louisiana
Weekly decried the "shocking contrast of justice" afforded
to blacks in small communities such as Martinsville when

105

106
compared to the treatment of white defendants. Even Nazi
war criminals, an editorial asserted, had received greater
due process protections than had blacks in the South. While
the Weekly professed no desire "to minimize crime or to
defend criminals who had no defense," it could not help but
observe that "in the South the seriousness of a crime
depends not upon the act itself but the color of the person
who perpetrates the act." The failure to extend procedural
safeguards to African-Americans, the Weekly concluded,
undermined the "respect and faith in our democratic way of
life both at home and abroad."2

The most strident criticism of the verdicts, however,
issued from the American radical press, particularly the
Daily Worker. The Worker' s editors adhered more closely to
Communist party orthodoxy than any other American newspaper
of the left, but since the end of World War II they had
attempted to broaden the paper's appeal to readers with
liberal or "progressive" leanings. Reporter Mel Fiske
covered the trials for the Worker and regularly dispatched
reports that criticized the tactics of the police, the
guality of the defense, and the "ruthless assembly line
legal machine" that "ground out death sentences for seven
Negro men." After the final jury announced its verdict, an
editorial in the Worker decried the "belt-line death
verdicts" of seven black men who had "been railroaded to die
on the usual frame-up 'rape' charge." Alarmed by the

107
specter of mass executions, the writer called on "public-
spirited organizations and citizens" to act immediately to
halt "a particularly brutal legal mass murder."3

The Daily Worker's interest in the Martinsville case
grew out of a long history of communist interest in the
affairs of African-Americans. The Communist International
had courted African-American participation in radical
politics since the Russian Revolution but it had also been
accused of placing party objectives over the actual needs of
blacks. For example, when the Sixth World Congress in 1928
decided, over the objections of American delegates, to
advocate the establishment of an independent Negro republic
in the South, few people believed that the Communists held
any serious interest in the problems of blacks. However,
the day-to-day operations of the party in the United States
differed significantly from these established party
principles. During the Great Depression, American
Communists became increasingly sensitive to the immediate
needs of blacks. More significant, African-Americans in
areas as diverse as the streets of New York and the cotton
fields of Alabama began to identify the party as one of the
few organizations genuinely responsive to their plight.

Throughout the 1930s Communists helped African-
Americans to combat housing and employment discrimination,
organize rent strikes, and curb the abuses of sharecropping,
peonage, and convict labor.5 They found their most striking

108
success, however, in the defense of African-Americans
accused of crimes. In 192 5 a group of Communist party
leaders organized the International Labor Defense (ILD) ,
which was dedicated to providing legal aid to any persons
who were "persecuted for their activity in the labor
movement." Although the ILD lent assistance to workers,
aliens, and other minorities, its efforts on behalf of black
defendants, supervised by the ILD's national secretary,
William L. Patterson, attracted the most attention. In a
series of cases radiating from the deep South to Maryland
and Oklahoma, the ILD earned a reputation among African-
Americans as a reliable ally in the struggle for racial
justice.

Two cases in particular — the Scottsboro rape case in
Alabama and the Angelo Herndon conspiracy trial in Atlanta —
demonstrated the potential of legal efforts on behalf of
African-Americans to bring the party to prominence. In June
1932 Herndon, a nineteen-year-old black Communist, was
arrested in front of the Fulton County courthouse for
organizing an interracial protest against the suspension of
relief payments. A month later, a grand jury indicted
Herndon for violating Georgia's insurrection statute. The
ILD represented Herndon at trial and used the case to link
issues of interest to African-Americans, civil libertarians,
and radicals. Thus Herndon ' s attorneys challenged the
exclusion of blacks from Atlanta juries, argued that the

109
insurrection law violated the rights of free speech and
assembly, and emphasized the importance of mass political
protest to combat poverty and racism. In 1937 the U. S.
Supreme Court overturned the conviction because Herndon's
distribution of literature supporting unemployment
insurance, equal rights for blacks, and self-determination
for the Black Belt did not pose a "clear and present danger"
of insurrection. The Herndon case marked a significant step
in the development of free speech doctrine, but more
important for the ILD, it publicized the injustices of the
Southern legal system and linked the Communist agenda to
those of civil rights activists, civil libertarians, and
legal reformers.7

The Scottsboro case proved even more valuable to the
ILD. The organization's defense of nine black teenagers
falsely accused of rape permitted radical attorneys to
dramatize the social and economic injustices of American
society. At trial, eight of the nine defendants received
the death penalty. On two separate appeals, however, the
ILD persuaded the U. S. Supreme Court that customary
practices in Southern courtrooms--the exclusion of blacks
from juries and the denial of counsel in capital cases —
violated defendants' rights under the due process clause of
the Fourteenth Amendment. The ILD convinced the prosecution
to drop the charges against four of the men, and the
remaining defendants received prison terms rather than death

110
sentences. Cases such as these served the dual purpose of
challenging the traditional status of African-Americans and
broadening the base of support for communism as party
members entered churches, lodges, and other organizations to
raise funds for their clients' defenses. Moreover, the
ILD's success in overturning Herndon's conviction and saving
the Scottsboro boys from execution convinced many blacks
that communist legal strategy would not necessarily
sacrifice black defendants for the sake of party
objectives.

Radical interest in African-American affairs lagged
during World War II as the CPUSA turned its attention to
supporting the wartime needs of the Soviet Union. In the
late 1940s, however, as cold war politics forced the
Communists into ever-narrowing fields of activity, many
party members looked to the burgeoning civil rights movement
as a possible source of political influence. In April 1946
the ILD, the National Negro Congress, the National
Federation for Constitutional Liberties, the Southern Negro
Youth Congress, and several smaller organizations merged to
form the Civil Rights Congress (CRC) . At a meeting in
Detroit, over four hundred representatives from the
organizations agreed to combat discrimination against
racial, ethnic, and political minorities by establishing
legal aid societies, raising bail funds, attacking police
brutality, and supporting civil rights issues in political

Ill

campaigns. Fiscal concerns that could be solved by reducing
the replication of services probably led to the merger, but
the delegates also concluded that a large united
organization could best weather the impending storm of
intensive federal and state investigations of groups
suspected of Communist affiliation. The CRC was not
associated officially with the Communist party, but
Communists held most of the top administrative and policy-
making positions and the organization rarely veered from the
party line. Nevertheless, local membership spanned the
political spectrum; the large African-American membership
ultimately focused the organization on issues of civil
rights and racial discrimination rather than problems
associated with labor or subversive activities.

One historian of the Civil Rights Congress has observed
that the National Negro Congress was "the heart of CRC" but
the ILD "served as the limbs."10 Former leaders of the ILD,
especially attorneys, infused the CRC with professionals who
had a talent for organization, rhetoric, and publicity. The
most important figure to carry over from the ILD was William
L. Patterson. A dark, heavy-set man of medium height,
Patterson had grown up in the San Francisco Bay area and in
1919 he received a law degree from the Hastings School of
Law. After graduation he moved to New York where he founded
the Dyatt, Hall, and Patterson law firm in Harlem, one of
the first law firms to attend the legal needs of urban

112
blacks. His friendship with Richard Moore and Paul Robeson,
two prominent black Communists, and his participation in the
campaign to free Sacco and Vanzetti heightened his interest
in radical politics. He joined the CPUSA in 1926 and in
1932 became the national secretary of the ILD. In 1947 he
assumed the job of executive secretary of the CRC, a
position he held until that organization's demise in 1956.

Although the CRC continued to work toward legal redress
of segregation and discrimination, it relied on mass public
protest against political and judicial institutions to a
much greater extent than had the ILD. As a CRC pamphlet
documenting its successes in the civil rights field
explained, "the key to the success of the fight for civil
rights has been the mass pressure of the people," not
courtroom victories.12 More traditional civil rights
organizations, however, feared that the militance of the CRC
would engender a reactionary fear of radicalism and lead to
the increased repression of minorities. Because of
differences in philosophy the CRC frequently collided with
other civil rights organizations, particularly the National
Association for the Advancement of Colored People (NAACP).13

The NAACP was founded in 1909 when a coalition of black
and white intellectuals met to consider the torpid progress
of race relations since the end of Reconstruction. Most
African-Americans at the time were denied access to the
ballot box, the courthouse, and the schoolyard.

113
Opportunities for economic advancement were nil; violence
against blacks was on the rise. Racial segregation was
entrenched by law in the South and by custom almost
everywhere else. In short, since the end of slavery
African-Americans had been denied their most basic civil,
political, and economic rights.

For the first two decades of its existence the NAACP
relied chiefly on lobbying, education, and publicity,
particularly through its monthly magazine, The Crisis,
edited by W. E. B. DuBois. It also made some initial
strides toward seeking redress in the courts. In 1915, it
submitted an amicus brief in Guinn v. United States, which
overturned the use of the "grandfather clause" to
disfranchise black voters. In 1917, ironically, attorneys
working for the NAACP defended William Patterson after he
was arrested for protesting American involvement in World
War I. The NAACP' s president, Moorfield Storey, a white
attorney, argued before the U. S. Supreme Court in Buchanan
v. Warley (1917) , which declared residential segregation
ordinances to be unconstitutional. In Moore v. Dempsey
(1923), the Court ratified Storey's arguments that federal
courts could intervene to protect the procedural rights of
defendants who were tried in state proceedings that labored
under the threat of mob action. In his final argument
before the Court, at age eighty-two, Storey convinced the

114
tribunal that the all-white primary in Texas violated the
equal protection clause of the Fourteenth Amendment.

Impressive as these victories were, they were more a
product of Moorfield Storey's personal diligence than any
organized effort by the NAACP. As of 1930 the NAACP had no
full-time legal staff nor any comprehensive litigation
strategy. Indeed, many of the organization's leaders,
including DuBois, opposed placing a primary emphasis on
legal issues because doing so drew resources away from the
Association's efforts to eradicate poverty and promote
economic advancement for African-Americans. Several events
at the turn of the decade, however, convinced the group's
leadership to strengthen its legal efforts. Storey died in
1929, leaving responsibility for litigation in the hands of
Arthur Spingarn, chairperson of the NAACP' s Legal Committee.
Spingarn was a prominent New York attorney with an
impeccable record on civil rights and liberties, but he did
not possess Storey's legal imagination nor his talent for
oral argument. The following year the NAACP received a
grant of $100,000 from the American Fund for Public Service,
commonly known as the Garland Fund after its founder,
Charles Garland. The money was earmarked to fund taxpayer
suits against school districts that failed to maintain equal
facilities for black and white students. Thus the NAACP
began to search for attorneys skilled in civil rights
litigation. Finally, the NAACP' s failure to wrest control

115
of the Scottsboro cases from the ILD in 1931 revealed the
importance of centralized supervision of its legal efforts.
The ILD's success in linking support for the Scottsboro
defendants to its economic and political agenda also
indicated that litigation efforts could complement, rather
than compete with, the other components of the NAACP's
mission. 6

In 1934, the Association appointed Charles Hamilton
Houston, dean of Howard University Law School, as the
NAACP's first full-time counsel. Houston had transformed
the university's weakest college into the leading training
ground for practitioners of civil rights law. He closed the
night school, tightened admissions standards, upgraded the
library's holdings, and modernized the curriculum. Students
were exposed to many of the brightest practitioners of civil
rights law, who often rehearsed jury summations or oral
arguments in front of Howard students and faculty before
going into court. Many students gained practical experience
by assisting attorneys in the preparation of briefs and
arguments. Most important, Houston emphasized the use of
historical, sociological, and statistical methods of
argument and encouraged students to define the practice of
civil rights law broadly. He carried this philosophy to the
NAACP, where he advocated a unified approach to resolving
the disparate problems associated with discrimination,
segregation, and racial violence. By the time one of

116
Houston's former students, Thurgood Marshall, assumed
Houston's position in 1938, the NAACP had become irrevocably
wedded to the legalistic method of combatting racism in
America. The creation of the NAACP Legal Defense and
Educational Fund in 1939, which gave the Association's
litigation activities tax-exempt status, further enhanced
the organization's ability to fashion a viable
constitutional litigation strategy.

Because NAACP leaders believed in gradually eroding
segregation and discrimination through legalistic means,
they freguently collided with the Communists' insistence on
mass protest and direct action. Unlike the CPUSA, the NAACP
did not seek to restructure the American social and economic
order, only to include African-Americans within that order.
Criminal cases often evoked the most pronounced antagonism
between the groups because of the publicity and notoriety
that surrounded the trials of alleged murderers and rapists.
NAACP leaders opposed communist defense of black defendants
on the grounds that the CP placed party objectives above the
interests of the defendants, but in reality both groups
pursued cases that advanced their respective institutional
goals. Leftist organizations competed with the NAACP for
potential members, and the successful defense of an African-
American could attract widespread support, as the ILD
discovered after its initial victory in the Scottsboro case.
Conseguently , when NAACP attorneys defended Jess Hollins in

117
Oklahoma for rape and represented George Crawford in his
Virginia murder trial, they devised their strategy in part
to disprove the ILD's contention that strictly legalistic
methods could not avail in Southern courtrooms. 8

The rabid anticommunism of the cold war era intensified
the conflict between the NAACP and the Communist party.
During the late 1930s and early 1940s the NAACP had secured
its position as the preeminent civil rights organization in
the United States as the ILD focused its attention on the
Soviet Union and the popular front. The creation of the
CRC, however, awakened fears that the NAACP would again be
subjected to leftist propaganda and invective. Like the
ILD, the CRC highlighted the prosecutions of blacks to
dramatize the racial injustices of American society and gain
support for the radical movement. CRC representatives
personally handled some cases, such as the Willie McGee rape
case in Mississippi (1945-51), but it usually sought to
cooperate with moderate organizations such as the NAACP and
the American Civil Liberties Union (ACLU) . Cold war
imperatives demanded that the NAACP reject these overtures,
however, as Southern politicians attributed the growth of
the civil rights movement to Communist inspiration. As Roy
Wilkins, a prominent NAACP administrator, argued in his
autobiography, "We were having enough trouble getting
Congress to consider even the most elementary civil rights
legislation; the last thing we needed was to give ammunition

118
to red-baiting Southern congressmen and senators, who would
have loved nothing better than to paint us pink."19 The
most dramatic showdown between the NAACP and the Civil
Rights Congress occurred in the winter of 1949-50 when the
NAACP refused the CRC ' s request to participate in the
National Civil Rights Mobilization, a planned congressional
lobbying alliance of racial, religious, and labor
organizations. The NAACP ■ s swift apprehension and dismissal
of CRC "delegates" who infiltrated the Mobilization provided
a clear public demonstration of the NAACP 's abhorrence of
civil rights activists who associated with radical political
movements.20

Against this background the Virginia State Conference
of the NAACP announced on May 12, 1949, nine days after the
Martinsville Seven were sentenced to death, that it would
"actively enter" the post-trial proceedings. Martin A.
Martin, a partner in the Hill, Martin, and Robinson law firm
and vice-chairman of the conference legal staff, had already
interviewed each of the men at the Virginia State
Penitentiary in Richmond two days earlier. The NAACP had
not represented the men at trial because NAACP policy
discouraged its attorneys from representing criminal
defendants unless they were clearly innocent. As Thurgood
Marshall explained to his legal staff, the NAACP was "not a
legal aid society;" its limited resources had to be expended
where they would do the most good. Marshall believed that

119
at the trial level, exonerating innocent African-Americans
would be the most effective way to expose the racial
injustices of the Southern legal system. Upon appeal,
however, the standard for representation became whether the
case could establish any important legal precedents "for the
benefit of due process and egual protection in general and
the protection of Negroes' rights in particular." As W.
Lester Banks, executive secretary of the Virginia State
Conference, explained, the issue was not the guilt or
innocence of the Martinsville defendants but whether they
had received a fair trial. The NAACP, he said, had a
"solemn duty and obligation to expose and focus attention on
a society that by its customs, practices, policies, and
traditions [made] possible the whole unfortunate
Martinsville affair."

In addition, the NAACP freguently entered cases late in
the process because it relied on its local branches and the
African-American press to inform it of potentially
significant cases. Often these cases did not receive any
publicity until after the penalties, usually death
sentences, were announced. According to the Richmond Afro-
American, one of Virginia's leading black newspapers,
attorneys from the Danville branch of the Virginia State
Conference had investigated the possibility of representing
the men at trial, but after the families of the defendants
spurned their initial inguiries, reportedly on the advice of

120
Martinsville civic leaders, the branch did not pursue the
matter further. The Afro-American and its leading
competitor, the Norfolk Journal and Guide, did not give the
case extensive coverage until the death sentences began to
mount. Once the trials concluded, the prospect of seven
black men being executed at once alarmed Virginia's African-
American community, especially since the state had never
sent more than three convicts to the electric chair in one
day. Thus the Virginia State Conference viewed the case as
an opportunity to advance the cause of due process and equal
protection and to demonstrate its commitment to assisting
black Virginians, especially poor blacks in the rural areas
of the state.22

More radical groups also began planning campaigns to
save the Martinsville Seven. Progressive Party members in
Virginia and North Carolina solicited letters and petitions
asking Virginia's political and judicial leaders to halt the
executions. The Progressive Party, established in 1948, was
not a Communist organization, but because of its support for
civil rights and its attack on Truman's anti-Soviet foreign
policy it attracted many Communists who wanted to
participate in mainstream politics. Although the party's
presidential candidate, Henry A. Wallace, polled less than
three percent of the vote in the 1948 election, the party
persisted through the support of popular front liberals and
traditional New Dealers who believed that Harry Truman had

121
perverted Franklin Roosevelt's original vision of social and
economic justice. In North Carolina, the People's
Legislative Conference, a Progressive party undertaking,
sponsored a tour of the state by relatives of the defendants
and urged concerned citizens to send letters of protest to
Judge Kennon Whittle. In Virginia, Wilbert Reavis, chairman
of Richmond's Progressive Party organization, asked the
justices of the Virginia Supreme Court of Appeals to grant
an appeal "so that these men might be afforded justice."
Taking his cue from the radical press, Reavis cited the pace
of the trials, the racial composition of the juries, the
unreliability of the complaining witness, and "the threat of
lynch mobs" as reasons why "a just trial was impossible."
The people of Richmond, he asserted, were "shocked by the
conviction and death sentence of the seven men."23

Although the Progressive Party attracted some initial
publicity to the case, widespread radical interest did not
begin until the Civil Rights Congress entered the case.
Soon after the trials Josephine Grayson, the wife of DeSales
Grayson, visited William Patterson at his New York office.
As Mrs. Grayson recounted her husband's ordeal and the
hardships that she and her family had endured, Patterson
experienced, he later recalled, "a new level of hatred for
my country's rulers." The reasons for Patterson's reaction
to her story were both personal and political. The grandson
of a slave, Patterson maintained throughout his life that

122
his mother had been conceived after a white master raped his
grandmother. More important, he believed that one of the
white establishment's primary weapons of oppression was to
brand black men as criminals, particularly as rapists of
white women. Patterson convinced the CRC executive board
that the case raised issues of central concern to the
organization, and the board authorized Patterson to offer
the CRC's assistance to the men. One day in early June
Patterson accompanied Mrs. Grayson to the Virginia State
Penitentiary to meet with DeSales Grayson. Patterson
outlined the CRC's legal strategy and convinced Grayson that
it would be "a fatal mistake to depend alone upon the
justice of the courts — that they had none," and that a mass
campaign for popular support would be necessary. Grayson
agreed and signed a retainer for the legal services of the
CRC . 24

On June 12 a group of forty men and women, about thirty
of whom were black, met at the A. D. Price Funeral Home to
form a Richmond branch of the Civil Rights Congress. Among
those attending were Communists, labor union members, and
representatives of the NAACP. After Josephine Grayson
addressed the meeting, William Patterson formally announced
that his organization would undertake Grayson's appeal and
that he would try to secure the assistance of 0. John Rogge,
a former U. S. assistant attorney general who had
represented the "Trenton Six," a group of New Jersey blacks

123
convicted of murder.25 Although only Grayson had signed a
retainer, Patterson promised that the appeal would "be so
phrased as to be of maximum benefit to the other six
defendants." Many of the charges that Patterson levelled at
state and local authorities paralleled the fair trial issues
raised by the NAACP, including the presence of an all-white
jury and the rapid succession of the trials. However,
Patterson also drew explicit comparisons to the Scottsboro
case and asserted, "I am convinced that Grayson is
innocent." The meeting concluded with a pledge to collect
fifteen thousand signatures by July 4 demanding a new
trial.26

The entry of outside groups into the case upset many
Martinsville citizens, who steadfastly maintained that the
case was strictly a local matter. Irving Cubine, the
commonwealth's attorney who had prosecuted the case,
professed to have "no quarrel with the basic principles of
the NAACP," but he objected to civil rights attorneys who
believed "that there cannot be a fair trial if it involves
the prosecution of a member of the Negro race." In his
opinion, the NAACP' s entry into the case would "prove to be
a greater handicap than an advantage to the Negro race."
Kay Thompson, editor of the Martinsville Bulletin, objected
to the efforts of the Communists, who were trying to upset
"the fine, friendly relations [between the races] that have
always existed in our community." Moreover, Thompson

124
believed that the CRC did not genuinely care about the fate
of the defendants. By arousing prejudice and distorting the
truth, the Communists hoped "for a few more recruits among
the ignorant and uninformed, and that ... is just about
the extent of their interest in the welfare of any one of
the seven men doomed to die." Both Cubine and Thompson
resented the interference of outside groups in an affair
which, they believed, local authorities had already resolved
fairly and judiciously.27

Although Cubine and Thompson considered the NAACP and
the CRC as part of a uniform threat to local values, NAACP
leaders wanted nothing more than to distance themselves from
William Patterson's organization. On June 13, the day after
the CRC entered the case, Martin Martin announced that
neither the NAACP nor his law firm would be associated "with
any organization which has been declared subversive by the
United States Attorney General." He stated that the
defendants had agreed "several weeks ago" to allow the NAACP
to represent them and that Grayson had not informed him of
any change in that arrangement. If the CRC entered the
Grayson case, he warned, the NAACP would withdraw from his
appeal, reject any cooperation with the CRC, and represent
the remaining six men only if the CRC did not enter their
cases.28

Martin's antipathy toward Patterson's organization
stemmed largely from personal experience and belief. For

125
one thing, Martin adhered to a conservative philosophy on
the sanctity of property rights, a principle that did not
mesh well with organizations that espoused a restructuring
of the capitalist order.29 He also had a long association
with the NAACP and was committed to its strategies and
principles. In the early years of his law career he had
served as president of the NAACP branch in Danville. After
moving to Richmond he joined the legal staff of the state
NAACP as vice-chairman. This association with the NAACP
undoubtedly acguainted him with the history of animosity
between the Association and radical groups. Finally, Martin
had personally experienced the conflict that Communists
could generate when they entered a case. In 1941, the
Workers' Defense League (WDL) , a "militant, politically
nonpartisan organization" associated with the Socialist
party, asked Martin to collect evidence of jury
discrimination in Pittsylvania County. This information
would be used to appeal the conviction of Odell Waller, a
black sharecropper accused of murdering his white landlord.
Waller had been represented at trial by the Revolutionary
Workers' League (RWL) , a group of Trotskyists dedicated to
spreading the principles of revolutionary Marxism, and
Martin had observed the manner in which the RWL had
disrupted the WDL's efforts on appeal. The ILD had not
asserted itself in the Waller case, but the WDL also
considered that organization as a political rival. Like

126
most Americans, Martin probably did not perceive any
practical distinctions between the RWL, the ILD, and the
CRC.30

On June 14, Martin met with George Elwood, temporary
chairman of the Richmond Committee of the CRC, to discuss
the CRC's participation. Elwood submitted that "the only
important question is to save the seven lives at stake."
The CRC did not seek publicity for its own aggrandizement,
he explained, but rather "to place defense of these seven
men before the bar of public opinion in Virginia and
throughout the nation." Martin agreed that "our sole
concern . . . is to do everything possible for these men,"
but because of the CRC's refusal to emphasize legal redress,
the NAACP would be "unable to cooperate with them in this
matter." Martin did agree, however, to allow the defendants
to select their own legal representatives.

Disagreement soon emerged, however, about the meaning
of this compromise. William Patterson understood that the
meeting had resulted in a proposal for a joint defense of
the seven men, subject to the approval of the NAACP national
office. Martin, on the other hand, maintained that he only
agreed to allow the prisoners to select their own attorneys,
but not to associate with any clients represented by the
CRC. In order to resolve this disagreement Patterson and
Emanuel Bloch, another CRC attorney, met with Marshall,
Marian Wynn Perry, and two other NAACP lawyers in the

127
national office. By that time, however, Grayson had
repudiated his retainer with the CRC after his brother met
with Mel Fiske in Washington and expressed fears "about what
kind of an organization CRC might be." The other men also
informed Martin that they would continue to rely on the
NAACP to represent them. The CRC learned of this decision
sometime during the week of June 19 but waited about two
weeks before George Elwood publicly announced that the CRC
would withdraw from the case. At the same time, Patterson
privately alerted CRC branch leaders to "be ready to move in
for the appeal to the United States Supreme Court."32

Martin Martin and Thurgood Marshall warned Patterson
that if the CRC "developed a mass campaign they would
publicly declare that it was detrimental to the struggle for
these men's lives." Patterson persisted in his belief,
however, that "only the movement of the people as a whole
guarantees a victory." Other CRC officials shared
Patterson's views. George Elwood urged the NAACP to wage
"an aggressive campaign to mobilize the people of America
behind a new trial." Alice Burke, state chairman of the
Communist party of Virginia, sent an open letter to Dr. J.
M. Tinsley, president of the Virginia State Conference of
the NAACP, in which she promised the NAACP "the wholehearted
support of all freedom-loving people" and urged "all
Virginians who believe in real justice" to launch a
"militant campaign" to halt the executions. Thus, while the

128
CRC relinquished responsibility for the legal appeals, it
continued to participate in publicity campaigns for the
i.33

Although the CRC actively fought for control of the
Martinsville cases, the resolution of the incident probably
served the CRC's interests even better than a joint defense
effort by the two organizations. CRC finances frequently
ran at a deficit so that it could not always afford the
court costs and fees associated with legal proceedings.
Allowing the NAACP to undertake the burden of litigation
freed the CRC to devote its resources to garner mass public
support for the defendants. The CRC had already generated
enough publicity that if the legal appeals were successful
the CRC could share credit for the victory, yet it could
distance itself from any responsibility if the cases were
lost. A failed appeal would also bolster Patterson's
arguments that the legalistic efforts of the NAACP were
insufficient to save the men.

To the NAACP, the CRC's constant efforts "to horn in on
the cases," in the words of Lester Banks, represented a lack
of concern for the fates of the condemned men and a desire
to discredit moderate civil rights organizations. William
Patterson's misinterpretation of the compromise on DeSales
Grayson's defense represented, at least to NAACP leaders,
the typical tactics of the Communists, who offered to form
alliances with liberal organizations on the one hand while

129
publicly branding them as uncooperative with the other. In
the fall of 1949, when William Patterson sought permission
for the CRC to participate in the Civil Rights Mobilization,
Thurgood Marshall reminded Roy Wilkins that the "conduct of
the Civil Rights Congress in attempting to disrupt the
defense of the Martinsville men was disgusting to say the
least." Marshall believed that the CRC used offers of
cooperation "for the sole purpose of making untruthful
statements concerning the program and policy of the NAACP"
and that Patterson was "more interested in playing politics
than in cooperating" with the NAACP.

The NAACP also remained extremely skeptical about the
CRC's interest in the fates of the condemned men. Ever
since their experience with the ILD during the Scottsboro
cases many black leaders maintained that Communists defended
African-Americans only in those cases that served party
interests. Marshall echoed these sentiments when he
explained to William Patterson, "We have never been
convinced that the Civil Rights Congress is primarily
interested in the protection of the rights of Negroes. We
have never been convinced that their primary interest is in
the particular Negroes involved." Therefore, Marshall
concluded, the NAACP would not cooperate in any action that
did "not have as its primary importance the protection of
the rights of the individuals involved."

130
Marshall's cynical assessment of Patterson's interest
in the Martinsville case overstated the extent to which
communist ideology guided the CRC ' s conduct of African-
American affairs. Radical groups often continued to provide
assistance to prisoners in Southern jails long after the
propaganda value of their cases had been exhausted. In
the Martinsville case, Patterson claimed that he
relinquished the CRC ' s claim to represent Grayson "in the
interests of all seven men" because the NAACP convinced him
that the CRC ' s presence in the courtroom would jeopardize
the appeals. Nevertheless, ideological interests clearly
guided Patterson and other CRC leaders. The CRC executive
board approved the Grayson retainer because it raised the
issues of discrimination and racial violence that the CRC
wished to publicize, and CRC press releases linked the
Martinsville Seven to similar cases in an effort to reveal
the conspiracy of racial and capitalistic oppression in
America. While Patterson and his organization remained
sensitive to the problems their participation could cause
for the defendants, they refused to forgo the publicity that
a case as sensational as the Martinsville affair could
provide.

By the same token, however, NAACP leaders resented the
CRC's participation not only because it adversely affected
their clients but because it undermined their efforts to
link black civil rights to the cold war liberal agenda.

131
Many American political leaders were beginning to pay heed
to the nascent civil rights movement as a means to quell
Soviet criticisms of segregation and racial violence that
compromised the United States' democratic ideology. At the
same time, however, Southern politicians asserted that
Communist agents had inspired growing demands for black
equality. Thus the NAACP had to distance itself from any
organization considered subversive in order to remain a
viable force in American politics. Cold war politics,
coupled with the historical animosity between the NAACP and
more radical groups, led NAACP leaders to reject out of hand
any offer of cooperation from leftist organizations because
it threatened their efforts to join the liberal consensus.

The NAACP had many reasons for rejecting an alliance
with the Communists, but those reasons were aimed primarily
at preserving the reputation and integrity of the national
office. Thus it made little sense to fight the battle for
control of the cases at the local level. Although Thurgood
Marshall and Roy Wilkins met briefly with William Patterson
and stayed in contact the Virginia State Conference, Martin
Martin and J. M. Tinsley conducted the bulk of the
negotiations. These efforts afforded them no opportunity to
begin preparing the appeals or raising funds. The delay was
especially costly because the state conference had yet to
receive any legal or financial assistance from the national
office.

132

The struggle for control of the Martinsville appeals
exacerbated tensions between the NAACP and the Civil Rights
Congress that had existed since the CRC ' s predecessor, the
International Labor Defense, began operating in 1925. The
divergent manner in which each organization proposed to
handle the cases highlighted fundamental disagreements over
strategy, ingrained suspicions of motive, and fierce
competition for membership. For example, the CRC ' s
insistence on direct action and mass protest clashed
directly with the NAACP ■ s belief that only carefully planned
litigation could advance the cause of civil rights. The
negative characterizations that leaders of the groups
attributed to their rivals underscored the extent to which
historic distrust between the organizations doomed any
efforts at cooperation. The NAACP 's strident rejection of
William Patterson's overtures also indicated that the CRC
had emerged as a viable challenger to the NAACP for
leadership of the civil rights movement. The Martinsville
case intensified the rivalry between the CRC and the NAACP
because it raised starkly issues of concern to both groups,
attracted national publicity, and lent itself to no easy
solution. As the appeals progressed both organizations
continued to pursue the cases in a manner consistent with
their respective ideological and institutional interests.

133
Notes

1. Quoted in Daily Worker, 9 May 1949, p. 4.

2. Louisiana Weekly, 21 May 1949, clipping in Folder a228,
Box 11, CRC Papers.

3. Daily Worker, 9 May 1949, p. 9; 31 May 1949, p. 1; 1 June
1949, p. 2; 2 June 1949, p. 4; and 3 June 1949, p. 9. On the
history of the Daily Worker see Mari Jo Buhle, Paul Buhle, and
Dan Georgakas, eds., Encyclopedia of the American Left (New
York and London, 1990), s.v. "Daily Worker (and successors)."

4. Nathan Glazer, The Social Basis of American Communism (New
York, 1961) , 170-71. The best history of the Communist
movement in the United States is Irving Howe and Lewis Coser,
The American Communist Party: A Critical History (New York,
1957) . On the CPUSA during the 192 0s, see two books by
Theodore Draper: The Roots of American Communism (New York,
19 57) ; and American Communism and Soviet Russia: The Formative
Period (New York, 1960) . Harvey Klehr, The Heyday of American
Communism (New York, 1984) , covers the 1930s but focuses
almost exclusively on institutional developments within the
party. On the relationship between the party and African-
Americans, see Mark Naison, Communists in Harlem During the
Depression (Urbana, 1983) , and Robin D. G. Kelley, Hammer and
Hoe: Alabama Communists During the Great Depression (Chapel
Hill and London, 1990) .

5. In addition to the works by Naison and Kelley, see August
Meier and Elliott Rudwick, "The Origins of Nonviolent Direct
Action in Afro-American Protest: A Note on Historical
Discontinuities," in Along the Color Line: Explorations in the
Black experience, ed. August Meier and Elliott Rudwick
(Urbana, 1976), 332-44.

6. Charles H. Martin, "The International Labor Defense and
Black America," Labor History 26 (Spring 1985): 167-70.

7. Charles H. Martin, The Angelo Herndon Case and Southern
Justice (Baton Rouge, 1976) ; Herndon v. Lowry, 301 U.S. 242
(1937) . On the "clear and present danger" test, see Frank R.
Strong, "Fifty Years of 'Clear and Present Danger1: From
Schenck to Brandenburg — And Beyond," Supreme Court Review
(1969) : 41-80.

8. Glazer, 134; Dan T. Carter, Scottsboro: A Tragedy of the
American South (Baton Rouge, 1969), 161-63, 318-24; Powell v.
Alabama, 287 U.S. 45 (1932) (due process requires the
appointment of counsel in capital cases) ; Norris v. Alabama,
294 U.S. 587 (1935) (exclusion of blacks from jury pools

134

cannot be justified by an official's assertion of good faith) .
On the use of the legal system to promote radical causes, see
Nathan Hakman, "Old and New Left Activity in the Legal Order:
An Interpretation," Journal of Social Issues 27 (1971): 105-
21.

9. Joseph C. Mouledous, "From Browderism to Peaceful Co-
Existence," Phylon 25 (Spring 1964): 83-84; Gerald Home,
Communist Front? The Civil Rights Congress, 1946-1956
(Rutherford, N.J., 1988), 29-40; Charles H. Martin, "The Civil
Rights Congress and Southern Black Defendants," Georgia
Historical Quarterly 71 (Spring 1987): 25-29; Wilson Record,
The Negro and the Communist Party (Chapel Hill, 1951), 232,
254-56; Civil Rights Congress, Civil Rights Congress Tells the
Story (New York, n.d.)/ 1- The major exception to the CRC ' s
focus on civil rights rather than civil liberties was its
support of the top eleven leaders of the Communist party
during their prosecution under the Smith Act. See Home, 108-
23, and Michal Belknap, Cold War Political Justice: The Smith
Act, the Communist Party, and American Civil Liberties
(Westport, Conn., 1977), 58-73.

10. Home, 29.

11. Ibid., 31-37; Naison, 15-16.

12. Civil Rights Congress Tells the Story, 1.

13. Glazer, 134; T. H. Kennedy and T.F. Leary, "Communist
Thought on the Negro," Phylon 8 (Second Quarter, 1947): 120.
The most complete account of the tension between the NAACP and
the CPUSA, although excessively critical of leftist
organizations, is Wilson Record, Race and Radicalism: The
NAACP and the Communist Party in Conflict (Ithaca, 1964) .

14. Charles Flint Kellogg, NAACP: A History of the National
Association for the Advancement of Colored People, 1909-1920,
vol. 1 (Baltimore, 1967), 9-19.

15. Kellogg, 183-87, 205-8, 241-45; Home, 34; Richard
Kluger, Simple Justice: The Story of Brown v. Board of
Education and Black America's Struggle for Equality (New York,
1975), 98-100, 102-4, 108-9, 112-15, 122-23; George C. Wright,
"The NAACP and Residential Segregation in Louisville,
Kentucky, 1914-1917," Register of the Kentucky Historical
Society 78 (Winter 1980): 49-51; Richard C. Cortner, A Mob
Intent on Death: The NAACP and the Arkansas Riot Cases
(Middletown, Conn., 1988), Chap. 7; Darlene Clark Hine, Black
Victory: The Rise and Fall of the White Primary in Texas

(Millwood, N.Y., 1979). The citations for the Supreme Court
decisions are Guinn v. United States, 238 U.S. 347 (1915);

135

Buchanan v. Warley, 245 U.S. 60 (1917); Moore v. Dempsey, 261
U. S. 86 (1923); and Nixon v. Herndon, 273 U. S. 536 (1927).

16. Kluger, 131-33; Cortner, 192-95; Carter, Chap. 3; Mark
V. Tushnet, The NAACP's Legal Strategy against Segregated
Education, 1925-1950 (Chapel Hill and London, 1987), 1-13.

17. Genna Rae McNeil, Groundwork: Charles Hamilton Houston
and the Struggle for Civil Rights (Philadelphia, 1983), 82-
85; Tushnet, 100-101; Roland D. Ealey, attorney, interview
with author, Richmond, Virginia, 13 August 1991.

18. Record, Race and Radicalism, 6-10; Tushnet, 37-38. On
the Hollins and Crawford cases, see Charles H. Martin,
"Oklahoma's 'Scottsboro' Affair: The Jess Hollins Rape Case,
1931-1936," South Atlantic Quarterly 79 (Spring 1980): 175-
88; Tushnet, 39-42; and Kluger, 147-54, 161. Hollins, after
successfully appealing two death sentences, accepted a third
jury's sentence of life imprisonment. Crawford also accepted
a life sentence rather than appeal and risk the death penalty
on remand. The ILD, convinced that legal action accompanied
by mass protest would ultimately exonerate the men, criticized
the NAACP for not carrying the appeals to their conclusion.

19. Roy Wilkins, with Tom Matthews, Standing Fast: The
Autobiography of Roy Wilkins (New York, 1982), 210-11; Home,
134-48; Martin, "Civil Rights Congress," 34-39, 45-52; Warren
D. St. James, The National Association for the Advancement of
Colored People: A Case Study in Pressure Groups (New York,
1958), 151-54; Charles H. Martin, "Race, Gender, and Southern
Justice: The Rosa Lee Ingram Case," American Journal of Legal
History 29 (July 1985): 256-61, 267-68. On the effect of
anti-communism on southern racial attitudes see Gerald Home,
Black and Red: W. E. B. Dubois and the Afro-American Response
to the Cold War, 1944-1963 (Albany, 1986) , and Wayne Addison
Clark, "An Analysis of the Relationship Between Anti-Communism
and Segregationist Thought in the Deep South, 1948-1964"
(Ph.D. diss., University of North Carolina at Chapel Hill,
1976) .

20. Record, Race and Radicalism, 152-56. The ACLU responded
in a similar manner to CRC overtures. See Mary S. McAuliffe,
"The Politics of Civil Liberties: The American Civil Liberties
Union During the McCarthy Years," in The Specter: Original
Essays on the Cold War and the Origins of McCarthyism, ed.
Robert Griffith and Athan Theoharis (New York, 1974), 152-70;
and Samuel Walker, In Defense of American Liberties: A History
of the ACLU (New York and Oxford, 1990), 208-11.

21. Richmond News Leader, 13 May 1949, p. 36; Richmond Afro-
American , 14 May 1949, sec. 1, p. 1; sec. 2, p. 1; News
Release, 13 May 1949, Box C211, Branch Files, Papers of the

136

National Association for the Advancement of Colored People,
Library of Congress, Washington, D.C. (hereinafter cited as
NAACP Papers). On the NAACP's policy regarding criminal
representation, see Memorandum, Thurgood Marshall to Legal
Staff, 16 February 1949, Box B99, Legal Files, NAACP Papers;
Carter, 52-53; and St. James, 50.

22. Richmond Afro-American , 14 May 1949, sec. 1, p. 14, and
sec. 2, p. 1; Tushnet, 39; interview with Roland Ealey, 13
August 1991. On June 21, 194 6, three black men from Princess
Anne County had been executed for murder. William J. Bowers,
Legal Homicide: Death as Punishment in America, 1864-1982
(Boston, 1984), Appendix A, 512.

23. Daily Worker, 3 0 May 194 9, p. 9; Richmond Afro-American ,
4 June 1949, p. 8. On the Progressive Party see Record, Negro
and the Communist Party, 278-85, and Norman Markowitz, The
Rise and Fall of the People's Century: Henry A. Wallace and
American Liberalism. 1941-1948 (New York, 1973) , 266-311.

24. William L. Patterson, The Man Who Cried Genocide: An
Autobiography (New York, 1971), 161-64; Home, Communist
Front? , 21, 33-34; Patterson to Roy Wilkins, 7 June 1950, Box
A361, General Office Files, NAACP Papers.

25. Richmond Times-Dispatch , 13 June 1949, p. 1. For a
complete account of the Trenton Six case, see Home, Communist
Front? , Chap. 5. Rogge freguently complained that he was
never adeguately compensated for the freguent work he
performed for the CRC. In 1954 he unsuccessfully sued the CRC
for unpaid fees and testified before a New York legislative
committee on the need for legislation to ensure that
contributions to civil rights organizations were spent
properly. Home, 244, 285, 355.

26. Richmond News Leader, 9 June 1949, p. 48; Richmond Times-
Dispatch. 13 June 1949, p. 1; Richmond Afro-American , 18 June
1949, p. 2; Announcement of June 12 meeting, n.d., File a231,
Box 11, CRC Papers. Also appearing at the meeting was
Margaret Bradby, whose husband, Joseph Bradby, had been
fatally shot by Frank M. Wood, an Alcoholic Beverage Control
inspector, on March 4, 1949. A Roxbury jury determined that
the shooting had been accidental. Virginia Governor William
Tuck received several petitions asking that Wood be put on
trial for murder, but efforts on behalf of the Martinsville
Seven soon overshadowed the Bradby case.

27. Richmond News Leader, 14 May 1949, p. 5; Martinsville
Bulletin, 12 June 1949, p. 4.

137

28. Richmond Times-Dispatch, 14 June 1949; Richmond Afro-
American. 25 June 1949, sec. 2, p. 3. The attorney general
listed the Civil Rights Congress as a "communist," not
"subversive," organization on October 21, 1948. See 13 Fed.
Reg. 6135, 6137 (1948) .

29. Occasionally Martin's commitment to property rights
collided with his devotion to civil rights. In 1958, while
representing a defendant who had participated in a civil
rights sit-in, Martin privately told Oliver Hill that he
disapproved of such tactics because he believed the
demonstrators had trespassed on private property. The U.S.
Supreme Court overturned the conviction of Martin's client in
Bovnton v. Virginia. 364 U.S. 454 (1960). Oliver Hill,
attorney, interview with author, Richmond, Virginia, 13 August
1991; Catherine A. Barnes, Journey from Jim Crow; The
Integration of Southern Transit (New York, 1983) , 144-45.

30. Program of the Annual Meeting of the Virginia State
Conference of Branches, Richmond, Virginia, 12-14 October
1951, Box C212, Branch Files, NAACP Papers; Richard B.
Sherman, The Case of Odell Waller and Virginia Justice, 1940-
1942 (Charlottesville, 1992), 16-18, 34-37, 53, 64, 90-91.

31. Richmond News Leader, 14 June 1949, p. 4.

32. Richmond News Leader, 14 June 1949, p. 4, and 7 July
1949, sec. B, p. 1; Richmond Times-Dispatch, 5 July 1949, p.
3; William Patterson to Roy Wilkins, 7 June 1950, Box A361,
General Office Files, NAACP Papers; Tom Buchanan, D.C.
Executive Secretary, CRC, to Patterson, 20 June 1949, and
Patterson to Buchanan, 21 June 1949, p. 3, both in File p50,
Box 80, CRC Papers.

33. Richmond Times-Dispatch . 5 July 1949, p. 3; Richmond
Afro-American , 2 July 1949, p. 6; Patterson to Tom Buchanan,
21 June 1949, p. 3, File p50, Box 80, CRC Papers.

34. Home, Communist Front?, 21-22, 47-49; Martin, "Race,
Gender, and Southern Justice," 256-57; Record, Negro and the
Communist Party, 260-62.

35. Record, Race and Radicalism, 153-54; W. Lester Banks to
Roy Wilkins, 8 August 1949, Box C211, Branch Files, NAACP
Papers; Memorandum, Thurgood Marshall to Wilkins, 16 November
1949, Box A193, General Office Files, NAACP Papers.

36. Marshall to Patterson, 9 June 1950, Box A361, General
Office Files, NAACP Papers.

138

37. Martin, "International Labor Defense," 187-89; Martin,
"Oklahoma's Scottsboro Affair," 188; Martin, "Race, Gender,
and Southern Justice," 256-57.

38. Patterson, 161-62; Richmond Afro-American, 18 June 1949,
p. 2; Patterson to Wilkins, 7 June 1950, Box A361, General
Office Files, NAACP Papers; Civil Rights (information bulletin
of the St. Louis Chapter, CRC) , May 1949, p. 3, copy located
in File pl21, Box 83, CRC Papers.

39. Peter J. Kellogg, "Civil Rights Consciousness in the
1940s," The Historian 42 (November 1979): 18-41, describes how
sensitivity to foreign criticisms of American racism affected
American attitudes toward civil rights. For a convincing
analysis of the relation between cold war ideology and civil
rights in the context of school desegregation, see Mary L.
Dudziak, "Desegregation as a Cold War Imperative," Stanford
Law Review 41 (November 1988): 61-120. On the relationship
between anti-communism and racism see Clark, 74-75, 115-16,
199-200.

40. W. Lester Banks to Roy Wilkins, 8 August 1949, Box C211,
Branch Files, NAACP Papers.

CHAPTER 6
"NO ABUSE OF DISCRETION":
THE MARTINSVILLE SEVEN IN THE APPELLATE COURTS

Having resolved the dispute with the Civil Rights
Congress, at least temporarily, the NAACP began developing a
strategy to challenge the seven death sentences. In earlier
cases the NAACP had attacked discriminatory methods of jury
selection, interrogation of suspects, and trial procedures
because they violated the due process clause of the
Fourteenth Amendment. Most of these cases, however,
involved innocent black defendants erroneously convicted of
crimes. The apparent guilt of the Martinsville Seven
presented a special difficulty before state and federal
judges who adhered to traditional views on interracial crime
and the importance of social order. Moreover, in the wake
of the political and social transformations that followed
World War II, the courts modified earlier decisions
safeguarding individual rights to provide greater protection
for public safety and community stability. Nevertheless
attorneys for the NAACP elected to pursue traditional routes
for challenging the convictions of the Martinsville Seven
before launching a more innovative attack on the Southern
legal system.

139

140
The Virginia State Conference of Branches did not
maintain a full-time legal staff, relying instead on the
volunteer efforts of attorneys around the state with
occasional assistance from the NAACP's national office. The
Richmond law firm of Hill, Martin, and Robinson, founded in
1943, comprised the heart of the state legal staff. Oliver
W. Hill, the chairman of the state staff, and Spottswood W.
Robinson, III, special counsel for the NAACP's southeast
region, spent most of their time supervising desegregation
litigation, while Martin A. Martin, vice-chairman of the
legal staff, specialized in criminal matters. All three had
attended Howard University Law School in the 1930s where
they studied statistical, historical, and sociological
methods of legal argument.1 During the 1940s the firm
worked on most of the major civil rights cases in Virginia.
It scored its first major victory in 1946 when the U. S.
Supreme Court struck down a Virginia statute that required
racial segregation on interstate buses that traveled through
Virginia. They received almost no financial compensation
for their civil rights work but they supported it by
building a lucrative practice representing banking,
insurance, and real estate interests in Richmond's African-
American community.

The firm's three partners presented contrasting but
complementary personalities. Oliver Hill, a tall, balding,
physically imposing man of forty-two, possessed the most

141
political acumen. Hill favored a moderate, gradual approach
to achieving racial equality, founded upon legal action and
increased political participation for blacks, because, he
explained, "standing on a corner whooping and hollering
never impressed me." Born in Richmond, Hill grew up in
Roanoke before moving with his parents to Washington, D.C.,
where he attended high school. In 1933 he graduated second
in his class from Howard Law School behind his close friend,
Thurgood Marshall. After finishing school he established a
law practice in Roanoke, where he began organizing black
teachers to demand salaries equal to whites, but he had
difficulty building a practice. In 1939, Hill moved to
Richmond, where an established African-American business
community provided a steady flow of clients. In December
1942, Hill agreed to join a partnership with Martin and
Robinson once he returned from military service. In
addition to supervising the NAACP's work in Virginia, Hill
became one of the state's most prominent black politicians.
In 1947 he narrowly missed being nominated for a seat in the
state General Assembly in the Democratic primary. He also
worked with Lewis Powell, Jr., one of Richmond's most
prominent white attorneys, on the Richmond city charter
revision committee that established at-large elections for
the city council. In 1948 voters elected Hill the first
black city councilman in Richmond since the turn of the
century.

142
Eight years younger than Hill, slender, bespectacled
Spottswood Robinson did not strike as imposing a figure as
his partner, but he lent impeccable scholarly credentials to
the firm. In 1939 Robinson joined the faculty of Howard Law
School after graduating with the best academic record in the
history of the school. In 1943 he relinguished some of his
teaching responsibilities so that he could join the
partnership with Hill and Martin, specializing in property
and real estate law. In 1948 Thurgood Marshall asked
Robinson to organize a litigation program to egualize
facilities in elementary and secondary schools. While Hill
and Marshall earned their reputations as fiery courtroom
orators, the methodical Robinson performed the essential
field work of investigating school quality, soliciting
willing plaintiffs, and petitioning local school boards for
relief. After observing first-hand the stark disparities in
quality between black and white schools, Robinson became one
of the first NAACP attorneys to advocate a direct attack on
the doctrine of "separate but equal."5

As the firm's specialist in criminal law, thirty-nine-
year-old Martin A. Martin assumed primary responsibility for
preparing the Martinsville appeals. Martin "didn't have the
polished edge" of his partners, according to his law school
classmate, Roland Ealey, but his theatrical demeanor and
rambunctious personality made the burly attorney an
effective force in the criminal courtroom. After completing

143
law school at Howard University in 1938, Martin established
a practice in Danville, where he became president of the
local branch of the NAACP. In that capacity he witnessed
first-hand the administration of justice to blacks in
southside Virginia. During the early 1940s he volunteered
his services in several criminal cases. One of these, the
case of Odell Waller, a black man sentenced to death for
murdering his white landlord, attracted national publicity.
Martin worked briefly for the Department of Justice
prosecuting aliens before joining Hill and Robinson in
Virginia in 1943. Martin was more conservative than his
partners, particularly on the guestion of property rights,
but he was egually committed to civil rights and worked
especially hard to desegregate public transportation.6

Three other attorneys, all members of the Virginia
State Conference legal staff, helped Martin examine the
trial records, research the law, and prepare the appellate
briefs. His chief deputy was Samuel W. Tucker, a lawyer
from Emporia, about sixty-five miles south of Richmond.
Tucker developed a passion for civil rights and the law at
an early age. He had worked in a law office since he was
twelve and at the age of fourteen he began protesting
segregation on intercity trains. He never went to law
school but while attending Howard University as an
undergraduate he met Oliver Hill, a first-year law student,
and they later studied for the bar together. Because he

144
enjoyed practicing in Emporia he declined an invitation to
join Hill's firm in 1943 but he continued to work closely
with the firm on civil rights cases. Roland Ealey, a close
friend of Martin's, had graduated from Howard Law School a
year behind Martin. He taught briefly at Lincoln University
in St. Louis and served in the U. S. Army before settling
permanently in Richmond in 1946 to practice law. At that
time, Ealey was not as experienced as the other attorneys in
civil rights work or criminal litigation but he
enthusiastically labored on every aspect of the appeals
process. His dedication even caught the attention of the
Civil Rights Congress, which asked him to represent some CRC
clients in the Richmond area. Finally, Jerry Williams, from
his office in Danville, provided the team with access to
necessary documents in the Martinsville Circuit Court and a
practitioner's perspective on the customs and procedures of
trial courts in that region of the state.

Before Martin Martin could begin preparing the appeals,
he had to reguest stays of execution from the governor of
Virginia, William Mumford Tuck. Tuck was not the only
official authorized to issue reprieves but as the only non-
judicial officer with that power he had greater discretion
to grant the requests in the absence of formal legal
arguments. Martin had ordered copies of the trial records
in May but he did not receive them until the end of June.
Because he would not have time to review thoroughly the one

145
thousand pages of typed transcripts and present a formal
request to a state supreme court justice before July 15 and
July 22, the scheduled execution dates, Martin petitioned
Tuck for a ninety-day reprieve to prepare the appeals.

After the NAACP announced its intention to petition for
a stay, letters and telegrams from clergymen, union members,
Communists, Progressive party members, and other citizens
flooded the governor's office. Much of the correspondence
appeared to have been influenced by the publicity campaign
of the Civil Rights Congress. Some obviously radical
groups, such as the Communist Club of Buffalo and the South
Side Labor Youth League of Pittsburgh, echoed the Communist
party dogma that "the phoney [sic] charge of rape has been
traditionally used in the attack against the Negro youth by
big business interests." Less strident correspondents,
however, also emphasized arguments that appeared prominently
in CRC and Progressive party literature. For example, a law
student from Miami, which had one of the more active CRC
chapters in the South, criticized the performance of the
court-appointed attorneys, the lack of black jurors, and the
"frail story of a hysterical woman." Others complained
about the rapid pace of the trials, the failure to grant a
change of venue, the use of coerced confessions, and the
severity of a punishment that "seemed aimed at suppression
of the Negro people rather than at achieving justice." The
broad geographic range from which these letters arrived also

146
attested to the interest generated by the case and the
effectiveness of the various publicity campaigns.9

Another group of letter writers admitted that the men
deserved to be punished for their crimes but argued that
execution was too severe for an offense that had not
resulted in the death of the victim. A Michigan minister
wrote, "The death penalty for rape under any circumstances
short of brutal murder is altogether too severe." A
Progressive Party member from Ohio acknowledged that the
defendants "should be sentenced to the penitentiary for a
few years" but he labelled the death sentences for men who
"never committed a murder" an example of "white supremacy"
and "American fascism." Most of the writers attributed the
harsh sentences to the race of the defendants while others
argued that the victim should bear partial responsibility
for the attack because she "was violating a strict southern
code in going to a Negro district after dark and without
proper escort." One writer surmised that a gang of white
men accused of raping a black woman would hardly have been
arrested, much less sentenced to death, while another noted
that a white Virginia man recently convicted of decapitating
his wife received only a twenty-year prison term. Neither
of these correspondents could be described as progressive in
matters of race relations. One described herself as "no
advocate of Civil Rights" while the other recommended
permanent separation of the races to prevent violence.

147
However, their comments exhibited a concern among many white
southerners that the treatment of black defendants reflected
poorly on the ability of Southern courts to administer
justice fairly and equitably.10

Finally, Governor Tuck received several letters and
telegrams from people who supported the convictions and
death sentences. All but one of these letters came from
within the state of Virginia, suggesting that the immediate
threat to personal security posed by the offenders shaped
local attitudes toward the crime. All of the correspondence
expressed, in varying degrees, a belief in white supremacy,
a fear of violent crime, a concern for the plight of the
victim, and indignation at interference by Communists and
the NAACP. One man asked Tuck why he would "waste time on
these savages" whose brutal actions and "syphilitic
infection have certainly ruined the victim physically and
mentally." A woman complained that "the National
Association of Negroes [sic] had better use their funds to
teach Negroes to be human at least" and she begged the
governor not to postpone the executions because it would
"only encourage more crimes." A Lynchburg resident
complained about outsiders who questioned the administration
of justice in Virginia and wondered whether the citizens of
Martinsville should be "commended or condemned for not
having taken the law in their own hands." He concluded, "If
the State of Virginia hasn't funds enough ... to stamp

148
these seven off the face of the earth, let me know and I'll
start a campaign to get you so much money, our Federal debt
will seem but a pittance."

Others seemed more concerned with the Communists '
interest in the appeals. A Michigan resident mailed Tuck
several clippings from the Daily Worker and warned him that
"you may be swamped with protests . . . from the Communists
in America. So don't let them mislead you." A seventy-
eight-year-old Virginia farmer who received some "pernicious
literature" from the "communist element of our state"
complained that he had never seen anything "to rile me as
much as this scathing denunciation of our administration of
justice." Tuck responded that he was well aware that "a
great part of my mail relating to these trials originates
with groups apparently identified with the Communist
movement" and he assured them that he would not be
influenced by "persons who do not seem to understand legal
processes . "

Some supporters of the Martinsville Seven worried that
public opinion might lead Governor Tuck to deny the petition
for a stay of execution. They feared that the corpulent
governor, considered by many Virginians to be a buffoon
whose only convictions consisted of a love for liquor,
cigars, and country music, might be swayed by the popular
sentiment against the condemned men. Furthermore, Tuck's
record on race relations exhibited no sympathy with the

149
goals of the NAACP. After residing for most of his life in
South Boston, about sixty miles east of Martinsville, and
representing Halifax County for eighteen years in the
Virginia legislature, Tuck shared the racial sentiments of
most white southside Virginians. As a loyal member of
Virginia's conservative Democratic party machine, led by
Senator Harry Flood Byrd, Sr. , he ardently supported state
sovereignty and states' rights to the extent that followers
of the Byrd organization jokingly labelled Tuck the Virginia
politician "most likely to secede." Tuck rarely resorted to
racial invective, but he publicly supported the poll tax and
segregated school systems and opposed federal civil rights
legislation. In 1945, African-Americans had supported
Tuck's opponent, Moss Plunkett, in the gubernatorial primary
and Tuck made little attempt during his political career to
court black voters.13

Martin Martin, however, expressed confidence that Tuck
would stay the executions. Martin knew that governors of
Virginia regularly granted stays of execution shortly after
sentencing. A request for clemency or commutation might
have political ramifications but a reprieve was merely a
temporary measure to allow prisoners to pursue their
constitutional right of appeal. Moreover, during his tenure
as governor, Tuck had instituted several significant reforms
in the administration of justice in Virginia. Despite the
fiscal conservatism of the Byrd organization he had

150
increased funding for the state's penal institutions. He
abolished the practice of flogging and ended the use of
chain gangs in prisoner work camps. He also restored to the
governor the pardoning power, which had previously been
exercised by a Board of Pardons and Reprieves. These
reforms reflected Tuck's desire to bring the legal processes
of the state in line with modern expectations of due
process. Granting temporary stays to the Martinsville
Seven, the governor explained to a concerned citizen, would
demonstrate "to the country at large" that the state of
Virginia was "willing for every individual to have full
recourse to his legal rights" and would "be very helpful in
overcoming the impression that the South is guilty of racial
hatred."14

At the same time Tuck's response to the reguest for a
reprieve illustrated the considerable authority that the
executive in Virginia exercised over the course of the
state's judicial process, at least at the appellate stage.
On July 5, 1949, Governor Tuck met with Martin, Hill, and
Robinson to discuss the petition for a stay of execution.
The attorneys explained that they had only received copies
of the trial record the previous week and asked the governor
to postpone the executions for ninety days to allow time to
thoroughly examine all six transcripts. Tuck, however,
would agree only to grant a more customary thirty-day
reprieve. The governor assured the attorneys that he was

151
not rejecting their request outright, but he explained that
he would have to consult with his attorney general before
granting such a lengthy stay. "I do not intend," he
promised, "to do anything that would embarrass in any way a
bona fide effort to use every recourse of the law in these
cases." In the meantime, he urged the lawyers "to use all
due diligence" in preparing the appeals and Martin promised
to work as fast as he could. At the end of the ten-minute
meeting Tuck promised to issue a written order that
afternoon.

On August 3, Martin visited the governor's office again
to request a thirty-day extension of the stays of execution.
Martin explained that NAACP attorneys had been working
constantly on the cases but that it would take two to three
more weeks to complete work on the appeals. He assured the
governor that he would file appeals with the Supreme Court
of Appeals before the court began its session on September
5. Convinced that Martin had demonstrated "genuine
progress" in developing the appeals, Tuck postponed the
executions until September 16 and 23 "to afford ample
opportunity for [them] to exhaust [their] legal remedies."

While Martin and his colleagues pursued the appeals,
the office of the Virginia State Conference of Branches
orchestrated a campaign to raise money for legal costs.
During its forty years of existence the NAACP had developed
a system for conducting criminal cases that effectively

152
marshaled its limited resources. While volunteer attorneys
concentrated on legal strategy, the state and national
offices instituted broad public information programs.
Speakers sought support from churches, labor unions, and
civic organizations; volunteers distributed leaflets
outlining the facts of the cases; and media liaisons
maintained close contact with the press. These measures
were intended primarily to generate interest in the case
that would translate into donations of time or money.
However, they also permitted the NAACP to monitor the public
presentation of the case so that publicity generated by
competing organizations, such as the CRC, could be corrected
if necessary.17

In accordance with this policy, W. Lester Banks,
executive secretary of the Virginia State Conference,
appointed a Martinsville Seven Defense Fund Committee to
raise funds to finance the cost of appealing the death
sentences. The conference had been accepting donations on
behalf of the seven since the NAACP agreed to accept the
case in May. Once Governor Tuck granted the stays, however,
the conference needed to raise a large amount of money in a
short period of time. Banks explained to Roy Wilkins, for
example, that "well over $1000.00" was needed simply to type
the trial records. Therefore the committee, comprised of
the Reverend Robert I. Taylor, the Reverend W. B. Ball, and
James P. Spencer, a member of the conference's executive

153
board, agreed to lead an aggressive drive for contributions
to "this worthy cause in defense of these men now awaiting
their doom in the penitentiary."18

The committee decided that the most effective way to
secure contributions would be to contact the ministers of
every church in the state. James Spencer, the secretary of
the committee, explained to each congregation the facts of
the case and asserted that "the seven men could not have
been given a fair trial in eight days." He emphasized the
high cost of legal fees, clerical help, and publicity
expenditures, which would "run into thousands of dollars."
In order to coordinate the conference's program with any
defense fund efforts that had already been initiated by
local branches, he promised to credit all contributions
received by the state office toward the annual quota set for
the NAACP branch in its city or county. Finally, Spencer
reminded church members that the stays of execution were not

• • 19

indefinite and urged them to act immediately.

The initial response to the fund drive, according to
Banks, resulted in "a small trickle of funds, but nothing
like enough to meet our current obligations in the cases."
By August 22 the conference had received contributions from
forty-seven churches, four local branches of the NAACP,
twelve individuals, and the Business and Professional Men's
Club of Halifax. The sum of these donations, however,
barely surpassed $1,000. The First Baptist Church in

154
Manakin provided the largest congregational contribution, at
$36.81, but none of the other churches raised more than
$20.00. Individual contributions tended to be higher, but
most of these came from the families of the convicted men.
Scott Hampton sent $130.00, and Bessie Hairston and James
Millner gave $100.00 each. Janie Taylor and Irene Hodgp.,
Howard Hairston' s aunt, contributed $12.00 and $35.00,
respectively. The Martinsville branch of the NAACP also
raised $55.54, more than any other branch that contributed

20

to the defense fund.

In an effort to boost contributions, the Defense Fund
Committee designated the week of September 4 as
"Martinsville Seven Week," with the goal of raising $5,000
on behalf of the men. The committee selected the week to
coincide with the opening of the September term of the
Virginia Supreme Court of Appeals, during which time the
NAACP expected the court to consider a petition for appeal.
The response, Banks hoped, "would be a bit more immediate
and generous" than previous efforts. The committee again
focused its efforts on churches but it also targeted social
clubs, civic organizations, fraternal lodges, and similar
groups. This time the committee not only solicited
donations through the mail but also sent attorneys into
local communities to explain the case and invited relatives
of the men to make personal appeals. On the last day of the
drive, for example, Martin, Banks, and Ida Millner, the

155
mother of Booker T. Millner, attended a mass meeting at the
Bank Street Baptist Church in Roanoke while Oliver Hill,
Roland Ealey, and Bessie Hairston, the mother of Frank
Hairston, spoke at Richmond's Moore Street Baptist Church.21

A persistent weakness of the NAACP's branch structure
was the failure to coordinate the programs of the national
office with the activities of its local units. The freguent
lack of communication between New York and the outlying
branches created two problems: the appearance of renegade
branches that operated contrary to national policy and a
lack of attention by the national organization to issues of
central importance to the local offices. The first problem
never emerged seriously in Virginia. One of the earliest
branches of the NAACP had been established in Richmond in
1915, and at the time of the Martinsville case sixty
branches existed within the state. By 1955 Virginia would
boast more members than any other state. Dr. J. M.
Tinsley's twenty-year tenure as president of the Virginia
State Conference supplied the organization with continuity
of leadership. Finally, the close friendship between
Thurgood Marshall, Oliver Hill, and Spottswood Robinson
provided the Virginia NAACP with personal contacts in the

22

national office that many other branches did not possess.
The preoccupation of the national office with other
issues, however, directly affected the Martinsville case.
Lester Banks repeatedly demanded greater support for the

156
Martinsville Seven from New York. In his report to Roy
Wilkins on the fund-raising campaign, Banks reminded Wilkins
that the state conference had "entered the cases largely
upon the insistence of the National Office," which had
assured Banks that the conference "would receive the full
backing of the National Office, financial and otherwise."
The Martinsville Seven Defense Fund Committee had nearly
exhausted the sources of support within Virginia, Banks
explained, and "the time [had] come to call upon the
National Office to throw its full weight behind this fight."
Therefore, he suggested that Wilkins "take immediate steps
in assuming the initiative in launching a nation-wide
publicity and fund raising campaign, in behalf of the seven
Martinsville men." Banks also asked Henry Lee Moon, the
NAACP's director of public relations, to come to Virginia
during Martinsville Seven Week "to personally conduct the
over-all campaign." Such a move would be "psychologically
wise," Banks believed, because it would demonstrate that the
Martinsville Seven had the full support of the national
organization. Banks also emphasized the importance of
acting immediately because "the best time to focus nation-
wide attention on the cases [is] before the Supreme Court of
Appeals has passed on them." Moon could not participate
because of prior obligations, but by the end of the year the
national office would spend over $4,000 toward legal costs
and publicity expenses. The bulk of the responsibility for

157
raising defense funds, however, remained in the hands of

23

overburdened local branches.

Meanwhile, attorneys for the NAACP combed the trial
record looking for procedural errors that would provide the
grounds for an appeal. On August 26, 1949, they submitted a
petition for a writ of error to the Virginia Supreme Court
of Appeals that charged the lower court with four violations
of due process. The strongest argument concerned the
failure of the trial court to grant a change of venue or
venire despite the gravity of the offense, the large amount
of pre-trial publicity devoted to the case, and the small
population from which to select an impartial jury. Second,
they believed that the trials should have been spaced at
longer intervals to avoid creating a cumulative effect of
guilt on the later defendants. Third, they challenged the
admission of the confessions into evidence because the
statements had been obtained before their clients could see
counsel or even relatives. This argument was weaker than
the others but the lawyers decided to pursue it because the
U. S. Supreme Court had occasionally overturned the
convictions of black defendants on the grounds that their
confessions had been coerced.24 Finally, because their main
concern was the severity of the sentences rather than the
convictions, the attorneys objected to Judge Whittle's
guestioning of jurors regarding their attitudes toward
capital punishment.

158
On September 5, 1949, Martin Martin, Roland Ealey,
Jerry Williams, and Samuel Tucker appeared before the
Supreme Court of Appeals on the opening day of its annual
term in Staunton, Virginia. Unlike litigants in most
states, those in Virginia's courts did not have an automatic
right of appeal. This idiosyncracy gave the Supreme Court
of Appeals, the state's only appellate court, tremendous
discretion over the cases it heard. Before arguing the
merits of their case, the attorneys had to convince the
court that the issues raised by the trials were worthy of
further review. Martin came prepared for oral arguments but
because the docket for the brief session was already crowded
the justices informed him that they would take his petitions
under advisement. At the opening of court the following day
the court announced that it would grant writs of error in
each of the cases. Only two days remained in the Staunton
term, however, so the court postponed oral arguments until
its regular session began in Richmond. The executions, the
justices noted, would be "automatically stayed" until the
final disposition of the appeals. A month later Martin
learned that the cases would be heard at the beginning of
the new year.

On January 9, 1950, Martin, Tucker, Ealey, and Williams
presented oral arguments before the Court of Appeals during
a three-hour session. Ealey began with a brief review of
the facts of the case and summarized the allegations of

159
error by the trial court: failure to grant a change of
venue, questioning prospective witnesses on their attitudes
toward the death penalty, admitting the confessions into
evidence, and holding trial on "practically successive
days." Ealey acknowledged that not every point pertained to
each case. For instance, the argument concerning the
spacing of the trials did not relate to Joe Henry Hampton's
prosecution because he had been the first defendant to be
tried. However, he explained, the lawyers would argue all
of the cases together and leave it to the court to determine

• 27

which points applied to a particular case.

Next the attorneys addressed the substantive points of
their argument. Tucker began by challenging the trial
court's refusal to grant a change of venue or venire. In
order to meet the legal standard for a change of venue, he
argued, the defendants did not have to prove that a fair
trial was impossible in Martinsville, only that conditions
created "a reasonable apprehension" that an impartial fair
proceeding would be unlikely.28 The pre-trial publicity in
the press and the testimony at the venue hearing far
exceeded this standard. Articles published in the local
newspaper "were calculated to crystallize public sentiment
that each of the accused should forfeit his life."
Anticipating possible First Amendment arguments by the
commonwealth, Tucker asserted that freedom of the press
"does not give newspapers the right to pre-try a case."

160
Press coverage in this instance did not emanate from
independent investigation by reporters but simply parroted
information supplied by officials of the local community who
wanted "to pre-try these cases in the newspaper and before
the public and to secure a verdict of guilty and the

29

sentence of death."

An examination of the testimony on the motion for a
change of venue, Tucker continued, indicated "beyond a doubt
that these newspaper articles had been widely read and
thoroughly discussed and that there were few, if any, within
the entire city who entertained doubt as to the guilt of the
accused." Of the twenty-five witnesses who testified on the
motion, seventeen of them stated that discussions of the
case revealed "strong popular opinion that all were guilty"
and three others had heard discussions that reflected a
"general opinion of guilt." Most of them also indicated a
"popular feeling . . . that the accused should be
electrocuted." This testimony demonstrated that "there was
practically universal feeling in the community that the
accused were guilty and a fairly general feeling that they
should be put to death." Tucker conceded that only nineteen
prospective jurors were excluded for having already formed
an opinion, but that merely indicated that most of the
jurors did not have "sufficient regard for their oath to
admit that their emotions and mental reactions were those of
the normal citizens." In Frank Hairston's trial, for

161
instance, one juror was excluded only because Hairston's
attorney happened to overhear the juror discussing the

30

case.

In addition to hostility against the individual
defendants because of their crime, the seven men also faced
racial prejudice from the jurors. It had long been "the
general usage, feeling and sentiment," he argued, that death
was the only appropriate punishment for a black man charged
with raping a white woman. Newspaper accounts of "the
pitiful condition of the victim of the alleged attack," fed
to reporters by unscrupulous prosecutors, were designed to
"arouse a sense of indignation and resentment on the part of
all citizens, particularly the male whites from which the
juries were to be drawn." Given that the authorities had
taken steps to prevent mob violence, it was not unthinkable
that some men, "inspired by a distorted sense of social duty
and loyalty to public sentiment . . . , might find it
convenient to disavow their feelings to be placed in the
best position to assure that the lives of none of the
defendants would be spared." Such prejudice could only have
been overcome, he contended, by either moving the location

31

of the trial or selecting a jury from outside the region.

The attorneys next argued that the lower court erred by
holding trials on "practically successive days." Normally,
they conceded, a speedy trial benefitted the accused. In
this case, however, when six trials were held over the

162
course of eight working days, "mounting public approval of
previous verdicts made it increasingly difficult for
[subseguent juries] to dissent." The precise point at which
this occurred could not be determined, although they
believed that the response to "public clamor" influenced
even the first trial. Certainly as prospective jurors in
the later cases learned of the guilty verdicts and death
sentences in the earlier ones, they "came under the
increasing influence to go along with the previous juries"
until "at some point it became apparent to all talesmen yet
to serve that they could not render a verdict [more] lenient
than the previous verdicts and keep face in the community."
The proximity "in time and distance" between the proceedings
created a cumulative presumption of guilt that differed
little from convictions obtained by hurrying defendants to
trial under pressure from a mob. In short, the Martinsville
court had denied the defendants due process with practices
that "railroaded [the defendants] to the electric chair in

32

assembly line procedure."

Counsel for the appellants also questioned the
admissibility of the confessions. The evidence that the
seven defendants had been coerced or subjected to the third
degree was tenuous because they signed written statements so
quickly. However, recent U. S. Supreme Court decisions
permitted appellate courts to review the voluntariness of a
confession as a question of law.33 The attorneys argued

163
that the confessions in these cases should have been ruled
inadmissible because at the time of arrest the defendants
were so intoxicated they could not even recall the incident.
Police investigators took advantage of this condition when
they took the men into custody and repeatedly questioned
them "either while under the effects or after-effects of
this drinking, while without the aid, assistance or advice
of any relatives or counsel." These circumstances rendered
the confessions inadmissible because the alcohol, coupled
with the defendants1 youth and their seclusion from friends
and relatives, impaired their ability to voluntarily make a
confession.

The most novel charge by the appellants, and ultimately
the most significant, concerned Judge Whittle's questioning
of prospective jurors regarding their attitudes toward the
death penalty. Part of their argument revolved around the
intent of the legislature in passing an 1847 statute that
prohibited a person, "whose opinions are such as to prevent
his convicting anyone of an offense punishable with death,"
from serving as juror in a capital case. This statute,
the attorneys argued, applied only to mandatory capital
offenses, such as treason, where an aversion to the death
penalty might lead a juror to vote for acquittal. Since the
passage of that law, the legislature had given juries the
discretion to impose or withhold the death penalty in cases
of rape, burglary, robbery, and first-degree murder.

164
Accordingly, a juror might have conscientious scruples
against capital punishment and still be willing to convict a
defendant of a particular crime. Given the "mounting
popular opposition to capital punishment," the attorneys
concluded, the state "should not require juries for serious
felony offenses to be selected only from an element of the
population whose callousness might increase as its numbers
>ase."36

The crux of the appellants' argument, however, did not
turn on the intent of the legislation but rather on the
custom of Virginia juries to consider the race of defendants
during sentencing. The trial judge had questioned
prospective jurors about the death penalty, Martin asserted,
in order to prejudice the jurors toward a specific penalty
for the accused because they were black. Prior to the Civil
War, the death penalty for rape had been reserved
exclusively for black men who raped white women. In 1866
the legislature eliminated the formal racial distinction,
but it continued to be "the policy, practice, custom, and
usage of juries in Virginia ... to sentence Negroes
charged with such crime to death, while seldom if ever has a
white person, convicted of a similar crime, been given such
a sentence." Therefore, the death sentences in the
Martinsville cases had not been motivated by the strength of
the evidence but rather by the customary treatment of black
rapists. The summary discharge of any prospective juror who

165
objected to imposing the death penalty further supported the
notion that only one penalty would be appropriate for the
offenders. Such questioning by the prosecutor might have
been permissible, but when the trial judge, of his own
accord, asked the jurors whether they had conscientious
scruples against capital punishment, he gave an informal
custom of local juries the official imprimatur of the state.
The actions of the court, the attorneys concluded, were
"well calculated to mislead other members of each jury that
the Judge concurred with the prevailing sentiment that all
found guilty should be put to death."

J. Lindsay Almond, Virginia's attorney general,
responded for the commonwealth with his assistant, Henry T.
Wickham. Almond, a former prosecutor and judge from
Roanoke, was an accomplished orator and a skilled attorney.
Since becoming attorney general in 1948 Almond had shrewdly
guided Virginia on a middle course in the field of
desegregation, satisfying the letter of recent federal court
mandates while preserving the spirit of the state's racial
caste system. Attorneys who stood opposite Almond in the
courtroom, including Thurgood Marshall, readily acknowledged
his legal talent. The stocky, white-haired barrister was a
politician, nonetheless, who had exchanged his congressional
seat for the attorney general's position with an eye to one
day occupying the governor's office. Almond ordinarily
relied on his assistants to argue before the Supreme Court

166
of Appeals but in cases of political significance, such as
the desegregation cases, Almond would speak for the people
himself. Oliver Hill later speculated that Almond argued
the Martinsville appeals because the notoriety of the case
provided an ideal forum for publicizing his views on crime
and race relations. Whatever his motives, Almond's vigorous
support of the trial court during oral arguments reinforced
his reputation as an advocate of the racial status quo and a
guardian of law and order.38

Almond's arguments challenged the legal standards for
reversal set forth by the appellants and emphasized the
impeccable conduct of Judge Whittle and the court-appointed
attorneys. Regarding the change of venue, Almond asserted a
presumption against moving a trial unless the defendant
affirmatively proved "that a fair trial could not be
obtained." The trial record in these cases, he argued,
could not support that contention. Only one witness to
testify on the motion for a change of venue "stated
unequivocally . . . that the defendant could not get a fair
and impartial trial." The newspaper accounts of the crime
"were written with restraint" and "were not inflammatory."
The Martinsville Bulletin never mentioned the word rape in
its stories and did not publish the name of the victim until
nine days after the assault. The Court of Appeals already
had refused to require a change of venue, Almond reminded
the justices, in cases that featured newspaper reports much

167
less temperate than those published in the Bulletin. Hence,
the appellants could not demonstrate that an overwhelming
prejudice against the defendants warranted moving the
location of the trials.

Almond also denied that the court erred in admitting
the confessions into evidence. The credibility of an
alleged confession, he maintained, was a question of fact
which the jury had to weigh in conjunction with other
evidence. He admitted that an appellate court could
invalidate even a reliable confession if it had been
obtained illegally, but in this instance nothing indicated
"that the questioning of these defendants was of long
duration and under duress, threat or promise of reward" or
that the suspects "were kept incommunicado for a period of
time." None of the defendants had denied signing the
statements voluntarily, and only Joe Henry Hampton claimed
that he did not know what he was signing. Furthermore, he
reasoned, the defendants' court-appointed attorneys "would
never have consented" to any actions of the trial court that
might have jeopardized their clients' rights, yet none of
the "able and experienced counsel" had voiced any objection
to the confessions.

Almond's responses to the remaining assignments of
error were less persuasive. With regard to the complaint
that the verdicts rendered in the initial trials unduly
influenced subsequent jurors, he argued that all of the

168
jurors stated under oath "that the result of the previous
trials would not influence their verdict or sentence in the
instant case and that they could absolutely give the
defendant a fair and impartial trial." Although some of the
jurors expressed agreement with the earlier verdicts, they
were capable of impartiality because in each case "the
defendants1 defense is different and all of the witnesses
are not the same." Almond addressed the issue only in terms
of disqualifying jurors and did not comment on whether
prejudice toward the defendants could have been reduced by
holding the trials at longer intervals. On Judge Whittle's
disqualification of jurors who had conscientious scruples
against imposing the death penalty, the attorney general
simply asserted that the plain meaning of the statute
authorized Whittle to engage in such an inquiry and that the
defendants had been treated no differently than any other
person charged with a capital crime.

In concluding his arguments Almond asked the court to
uphold the convictions and death sentences of the
Martinsville Seven. The trial records indicated that each
defendant had received a fair trial free from prejudice and
judicial error. He reminded the court that the defendants
had committed a "serious and hideous" offense in which the
victim placed "the finger of guilt on each and every one of
the defendants." Each jury, he concluded, had been "fully

169
justified in returning the maximum penalty provided under
the statute."42

On March 13, the opening day of the following term of
the Supreme Court of Appeals, the court decided against the
defendants. The seven men who sat behind the expansive
bench at the front of the courtroom — Chief Justice Edward W.
Hudgins, Herbert B. Gregory, John W. Eggleston, C. Vernon
Spratley, Archibald C. Buchanan, Abram Penn Staples, and
Willis D. Miller--epitomized the traditionalism and
conservatism that had characterized the Virginia judiciary
since the founding of the nation. The average age of the
jurists was about sixty-three years old, and only Miller was
younger than sixty. Four of the justices hailed from rural
areas in or near southside Virginia. Staples was a native
of Martinsville, although he grew up in nearby Roanoke.
Staples, Eggleston, and Hudgins had served in the General
Assembly and the rest of the justices had ties to either the
Byrd machine or their local Democratic party organizations.
Miller and Spratley had held office as commonwealth's
attorney, one of the traditional means of political
advancement within the Byrd organization, and Staples had
preceded Lindsay Almond as attorney general to Governor
Tuck. All of the justices were well-respected scholars of
the law and only Staples and Eggleston lacked prior judicial
experience. Philosophically the court ranged from the
"ultraconservatism" of Miller to the more progressive ideals

170
of Gregory, who believed that the law could act as a vehicle
for social change. They all shared a belief in the sanctity
of property rights, a concern for law and order, a
paternalistic attitude toward blacks, and a commitment to
judicial restraint.

Chief Justice Hudgins initiated the proceedings,
delivering the judgments in the cases for which he had
responsibility for writing the opinions. Hudgins had been
selected by lot to write the opinion in the Martinsville
case and he opened by announcing the court's unanimous
decision to affirm the convictions. Hudgins read only the
holding of the case, not the full opinion, then deferred to
his brethren as they announced the results in the cases for
which they were responsible. As soon as Justice Miller, the
junior member of the court, finished reading his judgments a
number of reporters hurried to the fourth floor of the
Supreme Court building, where court employees were
distributing the full text of the decisions, to discover the
reasoning behind the court's unanimous decision in the
Martinsville case.

Chief Justice Hudgins was recognized more as an
administrative innovator who had modernized the procedures
of the court than as a creative jurist, and his opinion in
Hampton v. Commonwealth exhibited his lack of judicial
craftsmanship. He relied heavily on the arguments of the
attorney general, guoting extensively from the trial records

171
and the commonwealth's brief. He cited numerous cases in a
conclusory fashion, rarely attempting to justify the
application of precedent cases to the Martinsville
proceedings. Nevertheless, the opinion clearly emphasized
that the court would allow local judges and juries broad
discretion to deal with violent criminal behavior.

In accordance with the tradition of the court, Hudgins
briefly summarized the facts of the case, then addressed the
issues raised by the appellants point by point. The trial
court was "in a better position to pass on the question" of
a change of venue because of its familiarity with local
circumstances, Hudgins stated, and the Court of Appeals
would not reverse the ruling unless the appellants
demonstrated an "abuse of discretion." No change of venue
had been warranted in these cases because the "fairly
accurate accounts" of the press had been published "in as
mild and temperate language as could be expected from the
nature of the crimes." In ruling on the confessions, the
court expressed support for strong law enforcement. "It is
the duty of police officers," Hudgins wrote, "to obtain all
available information ... to assist them in ascertaining
the criminal agent." This included questioning persons
suspected of committing the crime. "Cruel, unjust, or
coercive methods" of interrogation would not be tolerated,
but the experience of the defendants, Hudgins concluded
without explanation, did not fall within that prohibition.

172
As for Judge Whittle's questioning of the jurors, Hudgins
conceded that the "defendants' argument perhaps would be
appropriate if made to the legislature, but it is not
appropriate in a judicial forum."

The court also found no evidence that the rapid
succession of the trials had impaired the jurors' abilities
to render impartial verdicts. Hudgins reached this
conclusion on the evidence that the last defendants to be
tried, James Hairston and John Taylor, based their defense
on the consent of the accuser, while the first defendant,
Joe Henry Hampton, had blamed intoxication for his part in
the assault. Hudgins ignored evidence, however, that both
of these arguments had been invoked in the other trials.
Hudgins also noted that "some of the witnesses who were
summoned and testified did not testify in the other cases."
Yet Ruby Floyd, Sergeant Barnes, and Dr. Ravenel, the
witnesses who provided the most damaging testimony, had
appeared at each trial. Finally, Hudgins placed great faith
in the jurors' abilities to recognize and admit their own
biases. All of the jurors, he remarked, after being
thoroughly examined by both sides, stated under oath "that
they had no prejudice for or against the defendants, and
that they would go into the jury box and give them a fair
and impartial trial . "

Hudgins struck particularly hard at the charge that
racial prejudice had influenced the jury to sentence the

173
defendants to death. The court could not find "a scintilla
of evidence" to support the allegation that Virginia juries
reserved the death penalty for blacks. Hudgins cited with
approval Judge Whittle's pre-trial statement to the
attorneys that warned of the problems presented by the
interracial character of the crime. The jury had rendered
the harsh sentences only because of the brutality of the
crime and the overwhelming evidence against the defendants.
"One can hardly conceive of a more atrocious, a more beastly
crime," Hudgins wrote. "Each defendant's participation in
the criminal acts charged was established beyond the shadow
of a doubt." This argument by the attorneys, he concluded,
was "an abortive attempt to inject into the proceedings
racial prejudice, which the trial court was extremely
careful to avoid."

Immediately following the court's announcement, Martin
intimated that his next step would probably be an appeal to
the United States Supreme Court but that he wanted to
explore other options. On March 23 he met with his
colleagues to plan their next step. Although they had not
been surprised by the decision of the court, they believed
that they had raised some legitimate issues, particularly
regarding the change of venue, that merited further
consideration. Three avenues appeared open. First, they
could seek a rehearing in the Supreme Court of Appeals.
Martin ruled out this course of action because the decision

174
of the court had been unanimous. Second, they could ask the
governor to commute the sentences to life imprisonment. The
attorneys shied away from this route, however, because it
involved political variables over which they had no control.
The governor would be subject to the climate of public
opinion and, Roland Ealey later recalled, "the wind
certainly wasn't blowing in our favor in a case like this."
They also suspected that the governor would be influenced by
the unanimity of the court. Thus committed to legalistic
action, they elected at a conference on April 4 to apply to
the U. S. Supreme Court for a writ of certiorari.49

On April 12 Judge Whittle set the new execution dates
for May 2 6 and June 2. Because the Supreme Court was not
scheduled to meet again until May 29, Martin asked the new
governor of Virginia, John S. Battle, to stay the executions
until after the Court could hear the petition. Battle
waited until Martin filed the petitions for review with the
Court on May 19. Three days later, after consulting with
Attorney General Almond, Battle ordered reprieves of sixty
days. Some constituents accused Battle of granting the
stays to cultivate the black vote, a charge that he found
"unmerited and . . . very near to being insulting." He had
only issued the reprieves, he explained, because Almond
needed additional time to prepare the commonwealth's
response opposing the new petitions.

175
In addition to planning the new appeals Martin had to
contend with a resurgence of radical interest in the case.
With a few scattered exceptions the Civil Rights Congress
had adhered to its promise not to undermine the NAACP's
legal efforts with an independent publicity campaign.
After the decision of the Supreme Court of Appeals, however,
the organization could no longer maintain its silence. The
day after the court's announcement William Patterson
declared that "the Negro people of America" could not afford
to "sit by any longer, while NAACP counsel risk the lives of
seven men on their false theory that reliance can be placed
on a Supreme Court which includes Poll-Tax Tom Clark,"
referring to the conservative Texan who had joined the Court
in 1949. The only way to save the Martinsville Seven from
the electric chair, he exhorted, was to engage in "mass
meetings, open air demonstrations before court-houses, and
protest campaigns to governors, judges, and all

52

concerned. "

Accordingly the Richmond branch of the CRC organized a
Citizens' Committee to Save the Martinsville Seven to
coordinate a protest and publicity campaign. At a March 23
meeting at the Leigh Street A. M. E. Church in Richmond the
committee mobilized participants to "take the Martinsville
Seven case to the United States Supreme Court" and to demand
a rehearing in the state court from Chief Justice Hudgins.
It also appealed to local churches to "pray for justice for

176
the Martinsville Seven . . . every Sunday until the men have
been saved from the electric chair." At the same time the
Progressive Party of Virginia at its annual convention
criticized the NAACP for the slow progress of the case. The
Civil Rights Congress also began applying pressure on
federal officials. On May 19 six representatives of the
Citizens' Committee delivered a petition signed by 3,000
Virginians to Charles E. Cropley, the clerk of the Supreme
Court, that asked the Court to grant certiorari in the
Martinsville cases. They also presented a similar petition
to the Department of Justice asking Attorney General Howard
McGrath to intervene as a friend of the court to argue for a
new trial and reguest a reduction in the sentences. Neither
McGrath nor Cropley would comment on the petitions. In
Richmond, Martin Martin "made it crystal clear" that he
wanted no interference from radical organizations and he
tried to dissuade concerned citizens from joining the
protest efforts.

On June 3 the United States Supreme Court met to
consider the petition for certiorari. Like the Virginia
Supreme Court of Appeals, the Supreme Court possessed broad
discretion over which cases would appear on its final
docket. Most of the cases reviewed by the Court each year
arrive via petitions for writs of certiorari, documents that
attempt to convince the Court that there are "special and
important reasons" why it should hear the case. Because of

177
the Court's role as a policy-making body, justice to the
individual litigant is a less important factor in selection
than the presence of issues of broad constitutional
significance. If four members of the Court vote in
conference to hear the case, the Court grants certiorari and
schedules the case for oral argument. Very few of the
petitions survive this screening process. In the 1949-50
term, when the Martinsville Seven sought review, the Court
granted certiorari in only 94 out of 1033 petitions.

The petition submitted by Martin argued only that the
trial court erred in failing to grant a change of venue.
The "undue attention from the public press," Martin
asserted, created an "atmosphere of prejudice and hostility"
against the accused that demanded the movement of the
trials. The petition did not mention the confessions or the
death-qualified jury because the petitioners wanted to focus
the Court's attention on what they considered their
strongest argument. However, Martin noted that the
interracial character of the crime was "not without
significance. Such circumstances tend to arouse the most
violent emotional reactions."

On June 5 the Court announced that it would not review
the Martinsville case. Because judicial conferences are
held in secret and the Court does not publish its reasons
for denying certiorari it is difficult to determine why the
Court rejected the case. However, a memorandum circulated

178
to all the justices may shed some light on the Court's
reasoning. The memorandum was prepared by one of the law
clerks for the justices to distill the main arguments of
Martin's brief. The memorandum noted that Martin had not
challenged the conduct of the defense attorneys or the trial
judge as unfair, only the atmosphere of the community.
"While there is indication that popular sentiment [against
the defendants] was crystallizing as the trials progressed,"
the writer explained, "petitioners fall somewhat short of
demonstrating that a fair trial, under minimum 14th
Amendment standards, was impossible." Because "it seems
clear that any jury would have found petitioners guilty,"
the memorandum concluded that the failure to grant a change
of venue did not violate the constitutional rights of the
defendants. 6

To white Virginians the Supreme Court's action
vindicated the commonwealth's judicial process. "From the
moment of their arrest," the Danville Register boasted, "the
seven condemned Negro rapists of Martinsville have been
given the full protection of rights every human is
guaranteed under the Constitutions of Virginia and of the
United States." The citizens of the state welcomed the
Supreme Court review because no one wanted "Virginia's
reputation for justice to all its people to be . . . placed
under a cloud." The Supreme Court had spoken and, although
the justices had provided no reasons for their action, the

179
meaning of the case was "quite clear." All seven men had
"enjoyed their full rights" and the state was free to
administer their just fate — "death in expiation of their
crime against society." The purpose of judicial review,
therefore, was to ratify the state's methods of preserving
public order, not, as their attorneys suggested, to
invalidate the social and racial assumptions that
contributed to the operation of Virginia's legal system.
The appellate courts that reviewed the Martinsville
cases possessed a similar view of the role of the judiciary.
Throughout its history the Virginia Supreme Court of Appeals
had adhered to a philosophy of judicial restraint
characterized by traditional methods of legal analysis,
adherence to precedent, and deference to the legislature.
This jurisprudential approach, coupled with the court's
discretionary power over its docket, enabled the justices to
support the prevailing social order, particularly with
regard to racial issues. In the first half of the twentieth
century the court handed down only one decision generally
favorable to blacks, invalidating educational and
understanding tests for voters. The court's treatment of
blacks accused of crimes was even more striking. For
example, between 1900 and 1949 the court upheld the death
sentences of seven men convicted of rape or attempted rape,
reversed the death penalty in one case, and denied petitions
for writs of error in five other cases involving capital

180
punishment for rape. All of the cases involved African-
American defendants. Nearly 83 percent of the forty-six
black men executed for rape during that period did not even
appeal their convictions, indicating that black defendants
had difficulty even gaining access to the appellate courts.
In each case that reached the court the justices refused to
acknowledge the presence of discrimination even though the
evidence was strong enough that four of the defendants later
had their sentences commuted to life imprisonment by the
governor. As Roland Ealey later explained, the justices
"knew the wishes and desires of the community and . . . the
policies of the state, so they performed them."

Because of the limitations of the state judiciary, the
attorneys for the NAACP turned to the federal courts for
relief. Martin, Hill, and the other lawyers believed that
the U. S. Supreme Court would at least grant certiorari in
the case because under Chief Justice Fred M. Vinson the
Court had evidenced some sensitivity to the rights of
African-Americans in cases involving restrictive covenants
and the segregation of graduate and professional schools.
During the 1940s the Court had also issued several favorable
decisions in the area of criminal procedure. However,
following the deaths in 1949 of Justices Frank Murphy and
Wiley Rutledege, two of the Court's more liberal members,
the Court began to deliver opinions that placed social
stability over individual rights. In criminal proceedings

181
particularly the Court rarely intervened unless evidence
clearly suggested that the defendants might "have been
unjustly convicted rather than unfairly tried." It had
returned most of the discretion in matters of jury selection
to state and local agencies. In cases involving coerced
confessions the justices tended to overlook all but the most
blatant abuses, perceiving the widespread incidence of crime
to be a greater threat than strong-arm police tactics. The
Court's refusal to hear the Martinsville appeal was
consonant with its policy during a period of rapid social
and political change of avoiding cases that involved
problematic constitutional issues.

The appeals of the Martinsville Seven failed because
the prevailing attitude at all levels of the state and
federal judiciary at midcentury emphasized the preservation
of social order over the values of due process. From the
beginning of his involvement with the case, Martin never
claimed that his clients were wrongfully convicted, only
that the hostility and prejudice against the defendants
produced excessively harsh sentences. In dealing with
tradition-bound courts steadfastly avoiding controversy and
consciously promoting public safety over individual rights,
however, this approach did not promise easy success because
the ability to swiftly punish criminals went to the heart of
preserving local order. As a result, Martin began to
consider a direct challenge to the constitutionality of the

182
death penalty as the only means to save seven young black
men from imminent death.

Notes

1. Interview with Roland Ealey, 13 August 1991. On the
intellectual climate of Howard University in the 1930s see
Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the
Struggle for Civil Rights (Philadelphia, 1983), 82-85.

2. Morgan v. Virginia, 328 U.S. 373 (1946).

3. Interview with Oliver Hill, 13 August 1991; Program of
the Annual State Conference Meeting, October 12-14, 1951, copy
in Box C212, Branch Files, NAACP Papers; Mike Hudson, "Hill
v. Board of Education," Southern Exposure 17 (Spring 1989):
32; Catherine A. Barnes, Journey from Jim Crow: The
Integration of Southern Transit (New York, 1983), 41-48; Anne
Hobson Freeman, The Style of a Law Firm: Eight Gentlemen from
Virginia (Chapel Hill, 1989), 260-61 n. 48; Robert A. Pratt,
The Color of Their Skin: Education and Race in Richmond,
Virginia, 1954-89 (Charlottesville, 1992), 16-17; Geraldine
R. Segal, Blacks in the Law: Philadelphia and the Nation
(Philadelphia, 1983), 187-88; Richard Kluger, Simple Justice:
The Story of Brown v. Board of Education and Black America's
Struggle for Egualitv (New York, 1976), 471-72.

4. Interview with Oliver Hill, 13 August 1991; Andrew Buni,
The Negro in Virginia Politics, 1902-1965 (Charlottesville,
1967), 153-57; Hudson, 32; Freeman, 267 n. 80; Segal, 188;
Kluger, 471-72.

5. Mark V. Tushnet, The NAACP 's Legal Strategy against
Segregated Education, 1925-1950 (Chapel Hill and London,
1987), 110; Kluger, 472-73; Segal, 187-88.

6. Roland D. Ealey, attorney, interview with author,
Richmond, Virginia, 13 August 1991; interview with Oliver
Hill, 13 August 1991; Richard B. Sherman, The Case of Odell
Waller and Virginia Justice, 1940-1942 (Knoxville, 1992), 53,
90-92, 174; Barnes, 63, 83, 144-45; Segal, 188.

7. Interview with Oliver Hill, 13 August 1991; interview with
Roland Ealey, 13 August 1991; Segal, 188; Ralph Powe to Roland
Ealy [sic], File a320, Box 16, CRC Papers.

8. Richmond Afro-American, 14 May 1949, sec. 2, p. 1;
Richmond News Leader, 30 June 1949, p. 5; W. Lester Banks to

183

Roy Wilkins, 8 August 1949, Box C211, Branch Files, NAACP
Papers.

9. Richmond News Leader, 30 June 1949, p. 5; "A Petition for
Re-Trial," n.d.; Telegram, Communist Club to Tuck, 31 May
1949; Petition, "Free the Martinsville Seven," n.d.; James
Lionel Mack to Tuck, n.d.; Ruth Frank to Tuck, 14 June 1949;
Angus MacDonald to Tuck, 4 June 1949, all in Box 116, Tuck
Papers. On the activities of the CRC ■ s Miami branch see
Charles H. Martin, "The Civil Rights Congress and Southern
Black Defendants," Georgia Historical Quarterly 71 (Spring
1987) : 30-31.

10. Rev. John Maselink to Tuck, 10 May 1949; Henry Hannan to
Tuck, n.d.; Mrs. Robert Lee House to Tuck, 29 August 1949;
Sgt. George Temp to Tuck, 22 May 1949; Ellen Steger Groseclose
to Tuck, 5 May 1949; and "An Interested Citizen" to Tuck,
n.d., all in Box 116, Tuck Papers.

11. Richard B. Poythress to Tuck, 3 June 1949; Ellen Boaz
McManaway to Tuck, 4 June 1949; John W. Holloran, III, to J.
Lindsay Almond, Attorney General, 21 June 1949, all in Box
116, Tuck Papers.

12. Ray E. Williams to Tuck, 4 July 1949; Everett Edwards to
Tuck, 11 July 1949; James W. Mullins to Tuck, n.d.; Tuck to
Ray Williams, 7 July 1949, all in Box 116, Tuck Papers;
Richmond News Leader, 30 June 1949, p. 5.

13. William Bryan Crawley, Jr., Bill Tuck; A Political Life
in Harry Byrd ' s Virginia (Charlottesville, Va . , 1978), 50-53,
69-70, 184, 221-26; J. Harvie Wilkinson III, Harry Byrd and
the Changing Face of Virginia Politics (Charlottesville,
1968), 25-30, 60; Virginius Dabney, Virginia; The New Dominion
(Charlottesville, 1971), 516-20; Richmond News Leader, 3 0 June
1949, p. 5.

14. Richmond Afro-American, 11 June 1949, p. 1; Danville Bee,
27 August 1949; Tuck to Gertrude English, 5 August 1949, Box
116, Tuck Papers; William Bryan Crawley, Jr, "The Governorship
of William M. Tuck, 1946-1950: Virginia Politics in the
'Golden Age' of the Byrd Organization" (Ph.D. diss.,
University of Virginia, 1974), 604-5; Dabney, 420.

15. Richmond News Leader, 5 July 1949, sec. B. , p. 1;
Richmond Times-Dispatch , 6 July 1949, p. 6; Richmond Afro-
American, 9 July 1949, p. 1.

16. Richmond News Leader, 2 August 1949, p. 19, and 3 August
1949, p. 23; Richmond Afro-American, 13 August 1949, p. 19;
Tuck to Kennon C. Whittle et al., 3 August 1949, Box 116, Tuck
Papers .

184

17. Warren D. St. James, The National Association for the
Advancement of Colored People: A Case Study in Pressure Groups
(New York, 1958), 120-21.

18. Richmond Afro-American , 23 July 1949, p. 3; News Release,
13 May 1949, and Banks to Wilkins, 8 August 1949, both in Box
C211, Branch Files, NAACP Papers. In addition to being a
religious leader of Richmond's black community, the Reverend
Ball, pastor of Goodwin Baptist Church, was politically
active. In 1945 he ran for the House of Delegates in the
Democratic primary on a platform that advocated abolition of
the poll tax, repeal of Jim Crow laws, and reform of the
juvenile justice system. He placed fourteenth out of
seventeen candidates. Buni, 151.

19. Richmond Afro-American , 23 July 1949, p. 3; James P.
Spencer to "Dear Pastor and Congregation," 14 July 1949, Box
C211, Branch Files, NAACP Papers.

20. Banks to Roy Wilkins, 8 August 1949, and News Release,
22 August 1949, both in Box C211, Branch Files, NAACP Papers.

21. News Release, 22 August 1949, Box C211, Branch Files,
NAACP Papers; Norfolk Journal and Guide (home ed.), 10
September 1949, p. 1; Richmond Afro-American , 10 September
1949, p. 1; Norfolk Journal and Guide (peninsula ed.), 17
September 1949, p. 6.

22. Roy Wilkins, with Tom Matthews, Standing Fast: The
Autobiography of Roy Wilkins (New York, 1982), 190; Buni, 127,
177; Dowdal H. Davis, president of the Negro Newspaper
Publishers Association, to Wilkins, 8 January 1950, pp. 2-3,
Box 3, Papers of Roy Wilkins, Library of Congress (hereinafter
cited as Wilkins Papers); interview with Oliver Hill, 13
August 1991.

23. Banks to Wilkins, 8 August 1949; Banks to Moon, 9 August
1949; and Moon to Banks, 7 September 1949, all in Box C211,
Branch Files, NAACP Papers; Agenda, NAACP Legal Defense and
Educational Fund, Inc., 19 December 1949, Box 44, Papers of
Arthur Spingarn, Library of Congress (hereinafter cited as
Spingarn Papers) .

24. See, for example, Brown v. Mississippi, 297 U.S. 278
(1936), and Chambers v. Florida, 309 U.S. 227 (1940).

25. Interview with Roland Ealey, 13 August 1991; Petition for
Writ of Error, Record No. 3635, Hampton v. Commonwealth,
Virginia State Law Library, Richmond, Virginia (hereinafter
cited as Brief for Appellants) . In their petition to the
Virginia Supreme Court of Appeals the attorneys also objected
to the presence in the courtroom of police officers who were

185

witnesses for the prosecution and to Judge Whittle's ruling
on evidentiary motions in chambers without the defendants
being present. These arguments, however, were not important
to the disposition of the appeal.

26. Richmond Afro-American, 3 September 1949, p. 5; 10
September 1949, p. 3; and 3 December 1949, p. 9; Richmond News
Leader, 6 September 1949. On the appellate process in
Virginia see Thomas R. Morris, The Virginia Supreme Court: An
Institutional and Political Analysis (Charlottesville, 1975) ,
69-72.

27. Richmond Times-Dispatch , 10 January 1950, p. 2; Richmond
Afro-American, 14 January 1950, p. 1. The attorneys submitted
six separate briefs in the case, each indicating which
procedural errors specifically applied to the six trials.

28. Brief for Appellants, 10, quoting 56 Am. Jur. Venue sec.
69 (1947), and Wormeley v. Commonwealth, 51 Va. (10 Gratt.)
658 (1853) .

29. Brief for Appellants, 6, 13; Richmond Times-Dispatch, 10
January 1950, p. 2.

30. Brief for Appellants, 7-10, 13; Reply Brief for
Plaintiffs in Error, p. 4, Record Nos. 3635-40, Hampton et al.
v. Commonwealth, Virginia State Law Library (hereinafter cited
as Reply Brief) .

31. Brief for Appellants, 6-7, 13; Reply Brief, 5.

32. Brief for Appellants, 15-16; Reply Brief, 11-12. Moore
v. Dempsey, 261 U.S. 86 (1923), declared that mob-dominated
criminal proceedings violated a defendant's due process rights
under the Fourteenth amendment.

33. See, for example, Brown v. Mississippi, 297 U.S. 278
(1936) (confessions obtained through physical torture are not
voluntary and therefore violate due process) ; Chambers v.
Florida, 309 U.S. 227 (1940) (psychological coercion violates
due process) ; Malinski v. New York, 324 U.S. 401 (1945) (the
admission into evidence of an involuntary confession violates
due process even in the face of other overwhelming evidence
of guilt); and Haley v. Ohio, 332 U.S. 596 (1947) (conviction
of a black teenager who confessed after being held
incommunicado for five hours overturned because his youth and
lack of legal or parental counsel rendered his confession
involuntary) . On the development of the voluntariness test
see David M. Nissman, Ed Hagan, and Pierce R. Brooks, Law of
Confessions (Rochester, N.Y., 1985), Chap. 1.

34. Brief for Appellants, 19-21; Reply Brief, 9-10.

186

35. Va. Code Ann. . ch. 173, sec. 4899 (1942).

36. Reply Brief, 7-9.

37. Brief for Appellants, 17-19. On the legislative history
of capital punishment for rape in Virginia, see Donald H.
Partington, "The Incidence of the Death Penalty for Rape in
Virginia," Washington and Lee Law Review 22 (Spring 1965): 50-
51; and "Capital Punishment in Virginia," Virginia Law Review
58 (January 1972): 101-12.

38. Wilkinson, 133-37; Kluger, 480-482; New York Times, 6
November 1957, p. 30; interview with Oliver Hill, 13 August
1991. In 1957, at the height of Virginia's "massive
resistance" against desegregated schools, Almond succeeded
Thomas B. Stanley of Martinsville as governor of Virginia.
Although Almond remained committed to the principle of
segregation, he opposed state interposition and in 1959
convinced the General Assembly to abandon plans to block
court-ordered integration. Wilkinson, 138-49; Pratt, 9-11;
Numan V. Bartley, The Rise of Massive Resistance: Race and
Politics in the South During the 1950s (Baton Rouge, 1969) ,
322-25.

39. Brief on Behalf of the Commonwealth, pp. 7, 10-13, Record
No. 3640, John Clabon Taylor and James Luther Hairston v.
Commonwealth, Virginia State Law Library (hereinafter cited
as Commonwealth's Brief) ; Richmond Times-Dispatch, 10 January
1950, p. 2.

40. Commonwealth's Brief, 15-16, 20-21, 23.

41. Commonwealth's Brief, 14-15, 23-24; Brief on Behalf of
the Commonwealth, p. 23, Record No. 3 639, Grayson v.
Commonwealth, Virginia State Law Library.

42. Commonwealth's Brief, 33; Richmond Times-Dispatch, 10
January 1950, p. 2.

43. Morris, 38, 48-49, 53, 73, 77-78, 98-99, 176; Wilkinson,
24; interview with Roland Ealey, 13 August 1991. For
biographical information on the justices see Richmond Times-
Dispatch, 30 July 1958, p. 1 (Hudgins) ; 10 March 1951, p. 6
(Gregory) ; 19 May 1976, sec. B, p. 2 (Eggleston) ; 26 October
1976, sec. B, p. 1 (Spratley) ; 5 May 1979, sec. B, p. 2
(Buchanan); 29 August 1947, p. 1, and 12 January 1951, p. 1
(Staples); and 21 December 1960, p. 1, and 22 December 1960,
p. 8 (Miller) . Additional information as well as assessments
of the justices' contributions to the state's jurisprudence
can be found in the records of memorial proceedings contained
in the Virginia Reports. See 200 Va. lxxxv (1959) (Hudgins) ;
193 Va. lxxix (1952) (Gregory and Staples) ; 217 Va . vii (1976)

187

(Eggleston) ; 218 Va . viii ( 1977) (Spratley) ; 223 Va . ix (1980)
(Buchanan); 202 Va. cliii (1961) (Miller).

44. Morris, 72-73; Martinsville Bulletin, 14 March 1950, p.
4.

45. Morris, 77, 109; Richmond Times-Dispatch, 30 July 1958;
200 Va. lxxv, cii-civ.

46. Hampton et al. v. Commonwealth, 190 Va. 531, 544-45, 549-
51 (1950) ; Morris, 77.

47. Hampton, 557-58, 561-62.

48. Ibid., 554-557.

49. Interview with Roland Ealey, 13 August 1991; Richmond
Times-Dispatch, 14 March 1950, p. 4, and 24 March 1950, p. 6;
Richmond Afro-American, 1 April 1950, p. 1; Martin to Kennon
C. Whittle, 5 April 1950, Joe Henry Hampton File, Martinsville
Circuit Court.

50. Richmond Times-Dispatch, 12 April 1950, p. 6, 20 May
1950, p. 4, and 23 May 1950, p. 5; M. M. Poindexter to Battle,
22 May 1950, and Battle to Poindexter, 23 May 1950, both in
Box 115, Battle Papers.

51. Because the CRC could not always control the actions of
local branches, some lapses occurred. For instance, in July
1949 the Wisconsin Civil Rights Congress organized a
demonstration to persuade the mayor of Milwaukee to join the
protests against the "Martinsville frameup." Most branches
also participated, with the approval of the national office,
in the letter-writing campaign to Governor Tuck. Daily
Worker, 12 July 1949, p. 8; Mrs. Bobby Graff, Miami Civil
Rights Congress, to William Patterson, 9 July 1949, File p53,
Box 80, CRC Papers.

52. Press Release, 14 March 1950, File a232, Box 11, CRC
Papers .

53. Richmond Afro-American, 1 April 1950, pp. 1, 6, and 3
June 1950, p. 3; Norfolk Journal and Guide, 3 June 1950, p.
1; Daily Worker, 26 March 1950, and 29 May 1950, p. 5; Protest
Meeting Announcement, "They Must Not Die!," n.d., File a231,
Box 11, CRC Papers.

54. Conference list, 3 June 1950, The Papers of Felix
Frankfurter (microfilm ed. , Frederick, Md. , 1986), Part I,
Reel 45, frame 0741; Fowler V. Harper and Alan S. Rosenthal,
"What the Supreme Court Did Not Do in the 1949 Term — An
Appraisal of Certiorari," University of Pennsylvania Law

Review 99 (December 1950): 293. On the procedure for
appealing a case to the Supreme Court see E. Barrett
Prettyman, Jr. , "Petitioning the United States Supreme Court-
-A Primer for Hopeful Neophytes," Virginia Law Review 51 (May
1965) : 582-603.

55. Cert. Memorandum, No. 538 Misc., 1949 Term, Frankfurter
Papers (microfilm ed.), Part I, Reel 45, frames 0268-69;
Richmond Times-Dispatch, 20 May 1950, p. 4; interview with
Roland Ealey, 13 August 1991.

56. Hampton et al. v. Commonwealth, 339 U.S. 989, No. 538
Misc., cert, denied; Cert. Memorandum, Frankfurter Papers
(microfilm ed.), Part I, Reel 45, frames 0268-69. Copies of
the memorandum are also located in Box 36, Papers of Stanley
F. Reed, Margaret I. King Library, University of Kentucky,
Lexington, Kentucky (hereinafter cited as Reed Papers) ; and
Box 207, Papers of Harold Hitz Burton, Library of Congress
(hereinafter cited as Burton Papers) .

57. Danville Register, 6 June 1950, p. 6.

58. John Patrick Hagan, "Patterns of Activism on State
Supreme Courts," Publius; The Journal of Federalism 18 (Winter
1988): 103, 113; Morris, 77-78. Hagan believes that "the
Virginia Supreme Court of Appeals is very close to being an
ideal reflection of" a non-activist court. Hagan, 113.

59. Davis v. Allen, 157 Va . 84 (1931); Morris, 97-98.

60. Margaret Virginia Nelson, A Study of Judicial Review in
Virginia, 1789-1928 (New York, 1947), Chap. 7; Partington, 44,
48, 60, 64-70; interview with Roland Ealey, 13 August 1991.
The single reversal occurred in a case in which the testimony
of the alleged victim and her husband was judged so incredible
"as to be unbelievable even to the most incredulous and
naive." Legions v. Commonwealth, 181 Va. 89, 92 (1943).

61. Interview with Oliver Hill, 13 August 1991. Some
representative cases include Shelly v. Kraemer, 334 U.S. 1
(1948) ; Sweatt v. Painter, 339 U.S. 629 (1950) ; McLaurin v.
Oklahoma State Regents, 339 U.S. 637 (1950); Chambers v.
Florida, 309 U.S. 227 (1940); Ashcraft v. Tennessee, 322 U.S.
143 (1944); and Haley v. Ohio, 332 U.S. 596 (1948). On the
Vinson Court's record on civil rights and criminal procedure
see David P. Currie, The Constitution in the Supreme Court:
The Second Century, 1888-1986 (Chicago, 1990), 358-64; James
Bolner, "Mr. Chief Justice Fred M. Vinson and Racial
Discrimination," Register of the Kentucky Historical Society
64 (January 1966): 29-43; and John A. Gorfinkel, "The
Fourteenth Amendment and State Criminal Proceedings: 'Ordered

189

Liberty' or 'Just Deserts,'" California Law Review 41 (Winter
1953) : 682-91.

62. Gorfinkel, 690; Paul L. Murphy, The Constitution in
Crisis Times, 1918-1969 (New York, 1972), 263-64, 276-77,
303; Otis H. Stephens, Jr., The Supreme Court and Confessions
of Guilt (Knoxville, Tenn., 1973), 100-102; Fowler V. Harper
and Edwin T. Etherington, "What the Supreme Court Did Not Do
During the 1950 Term," University of Pennsylvania Law Review
100 (Dec. 1951) : 408-9.

CHAPTER 7

"WITH AN EVIL EYE AND AN UNEQUAL HAND":

CHALLENGING THE DEATH PENALTY

During the first round of appeals the NAACP attorneys
relied on traditional due process arguments rather than
broad attacks on the prevailing legal order. Even when
challenging the disproportionate sentencing of African-
Americans, Martin A. Martin narrowly framed the issue in
terms of the trial judge's authority to question prospective
jurors about their views on capital punishment. The failure
of these arguments, however, spurred Martin to abandon
narrow procedural challenges in favor of a frontal attack on
the discriminatory application of the death penalty. As a
result, the attorneys introduced historical, sociological,
and statistical evidence to prove systematic discrimination
against blacks in capital cases. In fact this was one of
the earliest instances in which lawyers marshaled
statistical evidence to prove systematic discrimination
against African-Americans in capital cases, rather than
focusing on procedural errors within a particular case.

Because this new strategy directly challenged the
operation of the criminal justice system in Virginia, it
also attracted the attention of the Civil Rights Congress.

190

191
Around the middle of 1950 several cases in which the CRC
maintained an interest had reached a head. Attorneys from
the NAACP were busy preparing to appeal to the U. S. Supreme
Court the convictions of three black citrus workers accused
of raping a teen-aged housewife in Groveland, Florida, while
NAACP lawyers in Georgia worked to gain the parole of Rosa
Lee Ingram, a black mother of twelve children convicted of
murdering a white sharecropper. Meanwhile in Mississippi
CRC attorneys labored to save Willie McGee, a black truck
driver convicted of raping a white woman, from dying in the
electric chair a day before the Martinsville seven were
scheduled to be executed. The obvious parallels between
these cases, coupled with the NAACP 's identification of a
historical pattern of discrimination in capital sentencing,
led the CRC to renew its efforts to join forces with the
NAACP.1

On June 7, 1950, two days after the U. S. Supreme Court
denied certiorari in the Martinsville Seven case, William
Patterson wrote to Roy Wilkins, administrator of the NAACP,
to request that NAACP and CRC leaders meet "to discuss the
steps that are necessary to mobilize the progressive
sentiment of America in opposition to this dastardly
conspiracy to railroad these men to their death."
Patterson's letter asserted the innocence of the seven and
emphasized the futility of legal action, the efficacy of
mass public protest, and the necessity of linking the

192
Martinsville case to similar cases in other states. The
actions of the Supreme Court, Patterson asserted,
demonstrated the futility of relying on legal redress
because "the nine powerful men on that bench are following
the example of Pontius Pilate." He reminded Wilkins that
"the legal lynchers are united," as evidenced by the pattern
of injustice in the death sentences against "the innocent
Negro youth in Groveland, Florida" and "the travesty of
justice that is the case of Willie McGee." The way to
counteract their power was a joint effort on the part of
civil rights organizations because "concerted mass action
alone can reverse that decision of death and win life for
these men." By joining forces the NAACP and CRC could
"raise such a tempest against this hellish Dixiecrat justice
as can force open the cells of the death house and restore
life to these men."2

In Wilkins 's absence Thurgood Marshall responded to
Patterson's request for joint action. Citing "several
deliberate misstatements of fact" in the letter, Marshall
defended the NAACP' s reliance on legal redress and
reiterated the traditional objections of the Association to
Communist involvement in its affairs, particularly the
belief that party interests, not the lives of the individual
men, were the principal concerns of the CRC. He deplored
Patterson's criticism of the Supreme Court and commented
that "if all lawyers would spend more time on preparing

193
their cases than in finding characterizations for the
courts, we would make more progress." The Martinsville
appeals, the Groveland cases, "and any other cases under the
jurisdiction of" the NAACP would be "carried forward in a
lawfullike [sic] manner within the lawful machinery of our
government." In short, Marshall concluded, "We have never
been convinced that the Civil Rights Congress is primarily
interested in the protection of the rights of Negroes. . . .
We therefore have no intention whatsoever of permitting you
to interfere in any of these cases."3

Patterson complained that Marshall's response to his
call for unity was "as rotten a statement as I have ever
seen in all my life." In a lengthy letter to Marshall,
copies of which were distributed to the press, Patterson
accused Marshall of missing the point that the Martinsville
case was "symptomatic of the oppression of Negro Americans
throughout our great land." "This act of terror — this crime
of government," he argued, "is not inconsistent with the
American way of life as it is reflected in the relations of
the officials of federal, state, and city governments to the
Negro people." The "hush-hush policy" of the NAACP had
failed to save the men because it neglected to harness "the
overwhelming strength which derives from the support of the
people." A direct appeal to the citizens of the country was
"not only lawful, but [had] been regarded as such by
presidents and leading men in government," including Thomas

194
Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin
Roosevelt. "This is no time for petty bickering or name-
calling," Patterson concluded. "Whatever our differences
may be on other questions, surely we can work together to
save the Martinsville Seven. Surely the men whose lives are
at stake would want to see us united to save them."4

Despite the eloquence of Patterson's plea, Marshall and
Wilkins had to wonder about his sincerity because at the
same time that the CRC sought cooperation, it publicly
criticized the NAACP for refusing to participate in a joint
campaign. This tactic was designed to inform citizens
concerned with civil rights about the opposing positions of
the organizations so that they would pressure the NAACP to
reverse its position. For example, a CRC member from New
York City, alarmed by the sentences of the Martinsville
Seven and Willie McGee, wrote to Marshall, "The issue at
stake ... is not Communism but the lives of eight innocent
negroes, who have been framed by the lynchcrats of the South
with the collusion of this administration." Criticisms such
as these, however, reinforced the belief of NAACP leaders
that the CRC simply was using the case to publicly impugn
the Association and its efforts. As a result, they
steadfastly opposed any effort to involve the CRC in the
Martinsville affair.5

Meanwhile, Martin A. Martin and his colleagues began
planning their next course of action. During the 1940s

195
several researchers had undertaken systematic studies of
racial disparities in capital sentencing. Guy Johnson and
Harold Garfinkel, an ethnographer and criminologist,
respectively, at the University of North Carolina's
Institute for Research in Social Sciences, independently
concluded that blacks convicted of the murder of whites in
North Carolina were more likely to be sentenced to death and
to have that sentence carried out than blacks who killed
other blacks or whites who murdered members of either race.
The Southern Conference Educational Fund (SCEF) , a left-
leaning social welfare organization based in New Orleans,
used data from the U. S. Census Bureau to determine that 93
percent of the men executed for rape in thirteen Southern
states between 1938 and 1948 were black. The lawyers
undoubtedly knew of these findings because in their first
appeal to the Supreme Court of Appeals they had alluded to
the custom of Virginia juries to reserve the death penalty
for rape for blacks. They had not, however, provided any
concrete evidence of this practice. Perhaps a systematic
survey of rape convictions in Virginia might yield some
evidence upon which a new argument could be built. Samuel
Tucker and Roland Ealey asked the superintendent of the
Virginia State Penitentiary to supply them with the names of
all death row prisoners who had been convicted of rape, the
names of those who had actually been executed, their races,
and the races of their victims. As the attorneys analyzed

196
this information, it struck them "like a bolt of lightning"
that since at least 1908, when the state took over
executions from local jurisdictions, forty-five black men
had been executed for rape in Virginia while no white man
had ever suffered a similar penalty for that crime.6

Striking as this evidence was, Martin hesitated to
present it in a judicial forum after the courts had already
rejected his more traditional due process claims. On the
other hand, the revelations might be persuasive enough to
convince the governor to commute the sentences to life
imprisonment. Therefore, the attorneys decided to seek
executive clemency for the seven from Governor John S.
Battle. In the meantime, Tucker and Ealey could tabulate
and analyze the data from the penitentiary so that they
could make a more sophisticated legal argument should the
clemency plea fail.

On June 23, Martin filed a petition with the governor
asking him to commute the sentences of the seven because the
death penalties were "unduly harsh and extreme." As in the
legal appeals, Martin brought Battle's attention to the
"unusual incidents of the trial which petitioners feel
prejudiced them in the minds of the jury," including the
method of obtaining the confessions and the rapid succession
of the trials. Unfettered by the procedural and evidentiary
constraints of the courtroom, however, Martin also
confronted directly the social and economic factors that had

197
led to the death sentences. Prior to the assault, his
petition noted, the petitioners had been "hard working young
men" of "good moral character," who had been accorded
"little or no social or economic advantage." In support
Martin appended brief biographies of each man that
emphasized their youth, lack of education, underprivileged
circumstances, and lack of serious criminal records. More
significant, Martin directly challenged the discriminatory
application of the death penalty. "The prime reason [his
clients] were sentenced to the electric chair," he asserted,
"was because all of them are colored and the prosecutrix was
a white woman and the juries were composed of all white
men." After he received the petition Governor Battle agreed
to meet with Martin and any other interested parties once
Martin returned to Richmond after Independence Day.7

Martin's petition to the governor delighted William
Patterson and other leaders of the CRC. The NAACP's
commutation strategy appealed to Patterson's organization
because the specific emphasis on the race of the defendants
meshed closely with the CRC ' s contention that racial
discrimination motivated all interracial rape convictions.
In addition, an elected official such as the governor
provided a more susceptible target for the type of mass
action favored by the CRC. Since Marshall and Wilkins had
rejected any cooperative effort, the CRC launched an
independent campaign to convince Governor Battle to grant

198
clemency to the Martinsville Seven. Several other
organizations organized similar parallel campaigns,
including the Capital Press Club, an organization of black
Washington journalists, and the Virginia Council of
Churches.

The primary strategy of the CRC was to conduct public
meetings that would convince large numbers of people to put
pressure on Governor Battle to grant clemency. Josephine
Grayson, the wife of Francis DeSales Grayson, toured the
state at the CRC ' s expense to appeal for funds and to urge
listeners to send letters and telegrams to Battle. On
Father's Day she visited the Hood Temple A.M.E.Z. Church in
Richmond to ask the congregation "in the name of my five
small children ... to help save their father." On July 1
the Committee to Save the Martinsville Seven staged a
demonstration at Richmond's Byrd Airport to arouse awareness
of the case in some Virginia Union University students
preparing to embark on a global "Crusade Against Communism."
At a mass rally at Madison Square Garden Patterson read a
telegram to be sent to Battle and linked the Martinsville
cases to those of Willie McGee, the Hollywood Ten, the Foley
Square Eleven, and other jailed Communists. Leaders of the
Communist party praised the CRC for "carrying on the proud
tradition of the International Labor Defense" and urged
party members to demand that President Harry Truman "take

199
moral responsibility for the lives" of the Martinsville
Seven.9

In addition to generating support for the men, the CRC
also sought to discredit the testimony that had convicted
them. Several months earlier the CRC had hired private
investigators to track down some of the witnesses who had
testified at the trial. On June 15 the Daily Worker
reported that Ruby Floyd had "disappeared immediately" after
the trials and that the investigators had been unable to
locate her. The Worker suggested that "Martinsville
authorities" had asked her to go into hiding so that she
could not be guestioned about her "apparently well
rehearsed, . . . trumped up story." Subsequent press
releases from the CRC characterized Mrs. Floyd as a mentally
unstable woman whose testimony could not be trusted. These
efforts to cast doubt upon the veracity of the victim were
ironic in light of the CRC ' s claims to oppose male supremacy
and support the rights of women. They also left the
organization open to criticism because NAACP attorneys had
already admitted publicly that their clients' guilt was not
in question, only the severity of the punishment.

The publicity given to the Martinsville Seven by the
CRC, the NAACP, and other organizations brought a flood of
correspondence into the governor's office. About two-thirds
of the letters appeared to have been influenced by the
information distributed by the CRC or similar organizations,

200
although most of the writers did not express any overt
radicalism. The remainder of the letters came from people
who either opposed the death penalty, belonged to religious
organizations, or feared that the executions might interfere
with the United States' efforts to export democracy.
Another measure of the CRC ■ s influence was the origin of the
correspondence. Letters and telegrams arrived from at least
a dozen different states, but more than half of them were
postmarked in New York, the city with the strongest branch
of the CRC and the easiest access to radical publications
like the Daily Worker. Battle also received petitions from
CRC chapters in Seattle, Chicago, and Mobile, Alabama.11

In keeping with the arguments raised by Martin in his
petition to the governor, most of the correspondents
emphasized the race of the defendants as the deciding factor
in the death sentences. A form letter circulated by the
Virginia Council of Churches admitted that the crime of rape
"deserves the just condemnation and the vigorous restraining
action of the state" and that the seven men should "pay for
the crime they have perpetrated against an individual and
against society." The letter noted, however, that "no white
man in Virginia has ever been condemned to death for rape
alone, even when the victim was white." The state's
"judicial record in the field of rape lends unmistakable
support to [the] belief," the letter concluded, that
"Negroes guilty of rape are judged not solely on the basis

201
of their crime but on the ground of their race as well."
Several letters referred to a recent incident in which two
white police officers who had raped a black woman only
received seven year prison sentences. Such examples aptly
supported Arthur Hirshfield's observation in another letter
that "their 'skin' is their crime."12

Another argument for clemency, closely related to the
racial arguments, emphasized America's reputation for
promoting eguality throughout the world, a reputation that
could be damaged by unfair treatment of blacks accused of
crimes. The letter prepared by the Council of Churches
emphasized that disproportionate sentencing of blacks was
neither "good Christianity or good democracy." While such
practices were indefensible at any time, the executions of
the Martinsville Seven might "cost us far more dearly in
these critical days when a Communist adversary makes ready
capital of all our failures in the practice of democracy."
A couple from Philadelphia, casting regional aspersions,
recommended that "since we seem to be in the midst for a
drive for democracy abroad, it seems more timely that we try
some in the South." As long as "atrocities" like the
"'frame-up1 of the 7 Negroes in Martinsville" continued,
another writer asserted, "no one in the world will be
willing to accept any kind of leadership from America."
Commuting the sentences would therefore not only demonstrate
the impartiality of Virginia's criminal justice system, it

202
would also aid the United States in its efforts to wage a
cold war against communism.13

Other letters alluded to the racial aspects of the case
but urged the governor to grant clemency for other reasons.
A few of the writers, drawing parallels to the Scottsboro
case, asserted the innocence of the seven and urged
commutation or, at least, a new trial. According to Morris
Schappes of New York, "the prima facie case of their
innocence is patent to many." Gerda Lerner of Astoria, New
York, noting that the last of the Scottsboro defendants had
been released from prison in early June, argued that "in the
case of the 'Martinsville Seven1 the innocence of the men
can be similarly proven, given time and another trial."
Others based their pleas on opposition to the death penalty.
Bernard Dabney, a member of an interdenominational
organization that performed religious work in state
institutions, asked Battle to commute the sentences because
"only God has the authority to take a man's life." Until
the commonwealth decided to "take its place among those
forward-looking states which have abolished capital
punishment," he noted, "the only alternative ... is a
commutation of their sentences by" the governor. A self-
described "old grandmother" from Roxbury, Virginia, just
east of Richmond, noted that "when girls and women travel
alone in lonesome places they are not much afraid of men"
and suggested that "the surest way [to stop rapes] is to

203
operate on the men who do it. . . . Locking them up only
makes them worse." Finally, a former resident of
Martinsville who had lived there during the trials
questioned the paternalistic assumptions that underlay the
death sentences. "I am an unmarried, white woman who
travels alone and need [sic] protection as much as any one,"
she wrote. "But I do not feel that this man's execution
will benefit me."14

Battle also received letters from four of the convicted
men. The letters, which were all written on the same day
and used similar language, were probably inspired by the
ministers who were keeping them abreast of commutation
efforts on their behalf. Each letter was written in its
author's own hand, however, and all of them focused on
different aspects of their cases. Joe Henry Hampton
emphasized his newly discovered religious faith and asked
Battle to commute the sentences because, although he was not
yet a Christian, "I do want to be a worker for the Lord, and
saviour, Jesus Christ." He prayed "day and night that God
will bless [Battle]. And all those who are taking an
interest in the cases." Booker T. Millner had also studied
scripture during his year in the penitentiary, having read
"the New Testament through three times" in addition to "a
lot of books on the Bible." If his life were spared, he
promised to "help someone to find God before it's to [sic]
late." Frank Hairston also asked the governor for "a chance

204
to help someone that's traveling [sic] the same path I was
traveling," but he placed more emphasis on Battle's temporal
power over their fates. "I know my life is in your hand,"
he pleaded, "and I know that you are the only one to go to
here on earth." DeSales Grayson made a plea on behalf of
his wife and five children and asked the governor to forgive
him for a momentary indiscretion, since he had "been a
working man all my life and has been honest." The Reverend
Robert Anderson, acting as John Taylor's spiritual advisor,
also sent Battle a cryptic letter alleging that "from
certain statements from [Taylor] which I have carefully
weighed, there are alleviating circumstances in favor of
these men." Battle invited Anderson to attend the clemency
hearing, but after Anderson missed the meeting because he
was out of town Battle did not pursue the matter further.
Anderson later revealed that the allegations involved the
validity of the confessions. Battle answered all of the
prisoners' letters promptly but his replies offered little
hope to the condemned men. He promised to give their cases
"the most serious attention" and assured them that "my only
thought will be to decide on the basis of right and
justice." However, he noted that he and Governor Tuck had
granted several reprieves in order that they "might have
every opportunity to carry your appeals to the Supreme
Court." Judges at the highest levels of the state and

205
federal judiciary, he reminded them, had already decided
that they had received fair trials.15

On July 7, Governor John Stewart Battle conducted a
clemency hearing on behalf of the Martinsville Seven.
Unlike his predecessor, Battle accorded with the image of a
governor with his handsome features, distinguished gray
hair, and gentlemanly manner, although he lacked William
Tuck's oratorical ability. A loyal Democrat, Battle had
cultivated the friendship of Harry Byrd during his twenty-
year service in the General Assembly and he weathered the
first serious challenge to the rule of the Byrd organization
during the 1949 gubernatorial primary. Like Tuck, Battle
supported some progressive initiatives, especially with
regard to school construction, but his innate conservatism
held little promise that he would support the clemency
petition. The grandson of an ardent secessionist and
Confederate war hero, Battle adhered strongly to the
official policy of segregation and the informal practice of
white paternalism toward blacks. He was astute enough to
recognize that race relations would not remain static, but
he firmly believed that the course of change should be
determined gradually by white Virginians and he resisted
efforts by the NAACP to hurry the process in the federal
courts. These attitudes blinded the governor to the
significance of racially disparate punishments. In
addition, Battle abhorred controversy and avoided making

206
decisions that might upset the stability that characterized
his administration. In fact, the controversy over the
Martinsville case, according to the governor's biographer,
"produce [d] Battle's first crisis as Governor." Finally,
although Virginia law granted the governor sole discretion
to grant clemency, regardless of legal precedents or rules
of evidence, Battle was inclined to defer to the judgment of
the courts, which had found no error in the trial
proceedings. 6

Twenty-one men and women of both races assembled in the
Senate chamber of the state capitol to speak on behalf of
the seven men. The group consisted mostly of clergymen but
the audience also included Lester Banks, executive secretary
of the Virginia State Conference, and several civic club
members. Martin Martin began by reviewing the case and
advanced the principal points raised by the petition: the
lack of serious prior criminal records against the
defendants, their lack of education and economic
opportunity, and the influence of racial factors on their
sentencing. Nine other speakers elaborated on these points.
John H. Marion, the white pastor of Bon Air Presbyterian
Church in Richmond, remarked that the sentences hardly
seemed "in accord with principles of equal justice," given
that no white man in Virginia had ever been sentenced to die
for rape. When Battle challenged that state records of
executions only dated back to 1908, Marion responded that,

207
in any event, "it is hard to escape the feeling that race
figured in the severe sentences." Citing Lewis Lawes, the
New York prison warden who opposed the death penalty, he
also denied that capital punishment had any deterrent effect
on crime. W. L. Ransome, the black minister of the First
Baptist Church in South Richmond, compared the case to the
two policemen who had received seven-year sentences for the
rape of a black woman. "When two well-trained men get
sentences like that," he wondered, "it seems strange that we
should convict seven ignorant men for the same crime."
Father T. E. O'Connell of St. Paul's Catholic Church
emphasized the finality of the sentences and argued that
since some of the men might not be guilty, the governor
could not err in commuting the sentences to life
imprisonment. Roberta Wellford, a white woman who
identified herself as a "civic leader," added that "the
administration of law should be so scrupulous there could
never be any doubt that justice is done." Finally, Joseph
T. Hill, the black president of the Virginia General Baptist
Association, placed partial responsibility on the
commonwealth for the incident because state-run liguor
stores allowed people "to drink all they can buy." Since
the defendants had been drinking all afternoon before the
crime, he noted, "I'd think of our own guilt" in placing
liquor at their disposal.18

208
Ida Millner, mother of Booker T. Millner, spoke on
behalf of the families of the men. Jennie Taylor, mother of
John Taylor, and Scott Hampton, father of Joe Henry Hampton,
attended the meeting but did not speak. Mrs. Millner
apologized for their failure to control their children,
noting that "we tried to teach our children the best we
could but somehow they strayed from our teachings." She
acknowledged that "our children should have punishment" for
their crime, but nothing as severe as the death penalty.
"We would be the gladdest and happiest mothers in the
world," she told the governor, "to know that they had life
in prison. "19

Still wary of external interference that might damage
his clients' case, Martin concluded the meeting by
emphasizing to Battle that all of the day's speakers were
loyal Virginians, not outside agitators. Although "some
guasi-liberal and guasi-Communist groups have tried to get
into this, to make it another Scottsboro case," he assured
the governor that "we have used every effort to keep them
out." In return, Martin pleaded, "we feel that justice will
be granted in Virginia." At the end of the hour Battle
commended the participants for their "dignity and restraint"
and promised to give the "intensely serious matter . . . all
the thought and study of which I am capable."20

As Battle pondered his decision, supporters of the
Martinsville Seven continued to put pressure on the governor

209
to grant clemency. The Citizens' Committee to Save the
Martinsville Seven scheduled a rally for July 21 at the
Leigh Street Methodist Church in Richmond "to provide an
opportunity for the people to express their demands that the
Governor let these men live." The Harlem Civil Rights
Congress called for "a week of prayer for the lives of
Willie McGee, the Martinsville, Va. Seven, the Trenton Six
and the other victims of Jim-crow terror in our country."
The CRC's national office reported that publicity on the
McGee and Martinsville cases "is now appearing throughout
Europe and Latin America." The Daily Worker published
stories about the families of the men that depicted gloomy
Independence Day celebrations in Martinsville's black
community and heartwrenching scenes of mothers reading and
rereading letters from their imprisoned sons.21

The state's major African-American newspapers also ran
editorials in support of the seven. The Norfolk Journal and
Guide, which took a conservative stand on race relations,
suggested that Virginia's pattern of executions brought the
state's reputation for "eguality of treatment under the law"
into question and noted that in light of world events,
"Virginia cannot afford to subject itself to the charge of
partiality and injustice by inflicting upon its Negro
citizens, simply because they are Negroes, more severe
punishment for a given crime, than it imposes on its white
citizens." Although the paper did not "condone crime under

210
any circumstances," it concluded that "the best ends of
justice will be served if the men's lives are spared." By
contrast, the more progressive Richmond Afro-American issued
a scathing indictment of the state's social and economic
order, which had produced "this putrid carcass of racism
that has all but reduced to utter social corruption the body
politics [sic] of Virginia." By using race as a criteria in
criminal sentencing, the citizens of Virginia had "permitted
a system of fascism to be superimposed upon the democratic
framework of our government." Although commutation "would
not meet the ends of justice in light of the facts," it
would "at least, spare their relatives from the horror and
disgrace resulting from death in the electric chair."22

On the evening of July 24, Battle denied the clemency
petition. In his statement, the governor, a trained
attorney, adopted a legalistic tone, characterizing the
participants' comments as "oral arguments" and consistently
referring to the trial records, "all of which I have studied
with care." Battle declined to recite "the revolting
details of this crime," but the facts of the case, he
asserted, demonstrated that each man raped Ruby Floyd while
the others "held, threatened, beat, scratched and in other
ways abused their victim." The confessions of the
defendants and their testimony at trial described the crime
"in all of its gruesome details." Several witnesses,
including the victim, corroborated these details, despite

211
being "subjected to searching cross examination" by "seven
able and competent lawyers." Seventy-two jurors heard the
cases and "without a dissenting vote, . . . condemned them
to death." Procedurally, the trial judge had been
"scrupulously careful to see that every precaution was taken
to insure fair and impartial trials," and two separate
tribunals had decided that no grounds existed to reverse the
verdicts.23

While the heinous nature of the crime and the
overwhelming evidence against the defendants especially
convinced the governor to reject the clemency plea, he also
addressed two other issues that had affected his decision.
Commenting on "the unwarranted attempt to attack these
convictions by injecting a racial issue," he indicated that
"some of the most damning evidence against the accused
Negroes came from the lips of members of their own race."
Battle also clearly resented the pressure being applied by
radical groups. Most pleas for clemency, he recognized, had
come from "reputable and sincere Virginians" but the
executive office had also "been flooded with communications
of a different type 'reguesting1 and 'demanding' the release
of 'these innocent men.'" "No fair minded person," he
complained, "can read the evidence in these cases without
being convinced, beyond the shadow of a doubt, of the guilt
of all the defendants." Cognizant of "the grave
responsibility placed upon me," Battle concluded, "I have

212
searched the records and my own conscience" without finding
any grounds to set aside the findings of the courts. "I
have no course, therefore, other than to deny the prayer of
the petition."24

Reaction to the governor's decision from supporters of
the Martinsville Seven was swift and harsh. At an emergency
meeting of the Citizens' Committee to Save the Martinsville
Seven held the morning after Battle's announcement, the
group denounced "the governor's callous indifference to
colored lives" and called on President Truman to use "his
high office to keep the Martinsville seven alive." The
Richmond Afro- American proclaimed Battle's conscience to be
"as bare as Mother Hubbard's cupboard" and accused him of
missing the point of the meeting because "he was asked for
tender, Christian compassion, not stern justice, and he let
Christianity down."25

From Battle's point of view such criticisms were
entirely unfair. Like other state executives he believed
that clemency should be granted only in extraordinary
circumstances, such as when new evidence arose or when
knowledgeable officials such as the prosecutor, trial judge,
or attorney general recommended commutation. A governor
might occasionally infer from a dissenting opinion or a
lukewarm affirmation of a guilty verdict that leniency was
merited, but the solid unanimity of the Supreme Court of
Appeals in the Martinsville case left no doubt in Battle's

213
mind that the jury had acted fairly and reasonably.
Sometimes in cases involving multiple offenders the governor
might weigh the relative guilt of the defendants, but that
usually occurred when the defendants were tried together,
not when separate juries recommended the death penalty.
Furthermore, many of the demands for the prisoners' release
appeared to have been inspired by Communist publicity.
Battle, cautious by nature anyway, probably deemed it
politically unwise to appear to be bowing to radical
influence, especially in what he perceived to be a case of
obvious guilt.26

With the first set of executions scheduled for July 28,
only four days remained after Battle's announcement to act
on behalf of the Seven. The CRC, assuming that any further
legal action would be futile, decided to concentrate its
efforts on persuading President Truman to intervene. On
July 25, William Patterson escorted Josephine Grayson and
Rosalee McGee, wife of Willie McGee, to the front gate of
the White House. After a guard refused to admit them
because they did not have an appointment, the women waited
outside the gate, speaking to reporters and passersby, while
Patterson and a small delegation telephoned White House
secretaries, Justice Department officials, and
representatives of the national Democratic party
organization. After about five hours George Triedman, the
chief of the Justice Department's civil rights section,

214
agreed to see Herbert Aptheker and three other
representatives of the CRC. After hearing their statements,
however, Triedman concluded that federal intervention was
not merited in either case.27

At the same time the CRC and the Citizens' Committee to
Save the Martinsville Seven urged their members to put
pressure on President Truman to act. Telegrams to the White
House reminded the president that he "had been elected on a
program of civil rights" and that a grant of "presidential
clemency" would be "an expression of good faith." The
committee asserted that executive intervention was "a long-
established practice," citing President Woodrow Wilson's
efforts to save Tom Mooney, a socialist labor leader, and
Truman's own pardon of the former mayor of Boston, James M.
Curley, on a mail fraud conviction. These examples,
however, ignored the limited power of the president in a
federal system to interfere with the judicial processes of
the states. The Curley case was irrelevant because he had
been convicted of a federal crime, over which Truman had a
pardoning power. Wilson had taken an active interest in the
Mooney case, in which the California socialist was convicted
of murder, but his influence was limited to urging
California Governor William D. Stephens to grant Mooney a
new trial. Stephens later commuted Mooney ' s sentence to
life imprisonment but the extent of Wilson's influence is
unknown. In practical terms, then, the appeal to Truman was

215
designed more to attract public attention to the plight of
the Martinsville Seven than to persuade Truman to
intercede. 28

While the CRC emphasized political action, the NAACP
elected to try one more appeal to the legal system.
Recognizing that they needed a "more novel, innovative"
strategy "to get any relief," the NAACP rejected obligue
procedural challenges in favor of a direct attack on the
discriminatory application of the death penalty. Armed with
the statistical evidence of racial discrimination in the
application of the death penalty, Martin petitioned the
Hustings Court of the City of Richmond for a writ of habeas
corpus, arguing that the defendants had been denied egual
protection under the Fourteenth Amendment to the U. S.
Constitution. On July 26, 1950, the day before four of the
prisoners were scheduled to die in the electric chair, Judge
M. Ray Doubles stayed the executions until the court could
hear arguments in September.

The reprieves breathed new life into the efforts to
save the Martinsville Seven. The Virginia State Conference
designated the week of August 27 as "Martinsville Seven
Week," with the goal of soliciting funds to pay the
prisoners' legal costs. J. M. Tinsley, the president of the
conference, appealed urgently to Virginia churches and
charitable organizations for their "moral, spiritual, and
financial support" and reminded them that the NAACP had

216
already spent thousands of dollars on the cases, "a
considerable sum of which still is due." On August 22 the
Richmond Citizen's Committee to Save the Martinsville Seven
transformed itself into the Virginia Committee to Save the
Martinsville Seven at a conference attended by-
representatives from Norfolk, Suffolk, Powhatan, Alexandria,
Roanoke, and Richmond. Josephine Grayson addressed the
gathering and provided her husband with an alibi that she
had been unable to supply a year earlier at his trial. "I
am more firmly convinced than ever that the whole conviction
was a frame-up," she informed Grayson's supporters, because
her husband "was home when the alleged crime was supposed to
have occurred." Those in attendance pledged to redouble
their efforts to halt the executions, beginning with a
petition campaign to Judge Doubles.

At the same time William Patterson renewed his efforts
to join the NAACP in a joint defense effort. Only hours
before Doubles had issued his order, attorneys for the CRC
had obtained a reprieve for Willie McGee. Patterson
congratulated the NAACP on winning a stay of execution
"immediately after our worldwide appeal that won [a] stay
for innocent Mississippian Willie McGee." In the wake of
these successes Patterson believed that "united action
[between] our two organizations can secure release of [the]
other twenty Negroes facing electrocution frameup charges
[in] nine states." Walter White, executive secretary of the

217
NAACP, referred Patterson to Thurgood Marshall's earlier
rejection of a proposal for joint action, adding curtly, "We
can see no reason to change this position."31

Participation by the CRC worried NAACP leaders not only
because of the historical animosity between the two groups
but also because of misrepresentations that were circulating
about the CRC • s role in the case. A message from the Harlem
Civil Rights Congress credited the CRC with winning "partial
victories in the Willie McGee and Martinsville 7 cases."
John Pittman, a columnist for the Daily Worker, attributed
the reprieves for the Martinsville Seven to the CRC's
success in staying the McGee execution. "For how could the
lyncher class give ground on a case fought by the Civil
Rights Congress, an organization it has branded as
•subversive1," Pittman queried, "without also retreating on
a case handled by the NAACP, an organization whose leaders
it dearly prizes as willing reformist tools for
circumventing the Negro people's militance and detour ing it
into the innocuous channels of legalistic controversy?" He
also suggested, incorrectly, that both stays had been
granted at the behest of the Truman administration in
response to the outpouring of protest from all corners of
the globe. Although William Patterson had graciously
credited the NAACP for its success, Pittman reminded readers
that "the mass protest movement for the Martinsville Seven
was organized primarily by the CRC and its supporting

218
organizations," so that "whatever role the NAACP played in
this case was the product not of its lackey leadership, but
of the many thousands of its rank and file Negro members who
worked and fought for both McGee and the Martinsville
youths." Once again NAACP leaders had to wonder why offers
of cooperation were accompanied by attempts to denigrate the
Association.32

The Virginia State Conference also resisted cooperation
with any other groups because it could not separate those
with genuine concern for the seven from those with suspect
political motives. At the beginning of September, J. M.
Tinsley received several complaints from contributors who
had donated money to groups misrepresenting themselves as
agents of the NAACP. He and Lester Banks promptly notified
James F. Smith, chairman of the Committee to Save the
Martinsville Seven, that "the NAACP has consistently since
its original connection with the case . . . refused to
become associated with any other group or organization in
the raising of funds." Tinsley and Banks did not discourage
the Committee from continuing its efforts independently and
wished Smith "godspeed" in his efforts. They could not,
however, authorize him to solicit funds on behalf of the
NAACP. This was due partly to official NAACP policy but
also to local uncertainty as to the precise status of the
Committee. The Richmond Afro-American identified the
committee vaguely as "a part of or affiliated with" the CRC

219
and reported that many Richmonders believed that it was
"being influenced by a Communist master mind." In light of
the desperate situation of the seven, state and national
NAACP leaders determined that they could not afford any
association with groups of questionable background.33

Meanwhile Martin, Tucker, and Ealey prepared their
arguments for the habeas corpus proceeding, relying on the
contention that the death penalty for rape in Virginia was
reserved for African-Americans. That the attorneys waited
so long to advance the racial disparity argument in the
court should not be surprising. The purpose of the initial
appeals had been to correct any procedural errors that the
trial court had made. Therefore, the lawyers had been
limited to raising issues that appeared in the formal record
of the trial court. Since Judge Whittle never had an
opportunity to rule on the equal protection issue, the
attorneys could not have legitimately raised the issue on
direct appeal. A habeas proceeding, by contrast, is not a
direct appeal of a trial court's judgment but rather a
separate civil action challenging the legality of a
prisoner's detention. Like most jurisdictions Virginia
required criminal defendants to exhaust their direct appeals
before they undertook a collateral attack on their
conviction. Once they brought the habeas action, however,
Martin, Tucker, and Ealey could broaden the basis of their

220
arguments to allege racial discrimination in capital
sentencing.34

The attorneys probably also hesitated to challenge the
death penalty directly because of the vigorous support of
capital punishment at the middle of the twentieth century.
After a brief flurry of activity during the Progressive era,
when nine states abolished the death penalty and others
modernized the punishment by removing the authority to
perform executions from local jurisdictions and adopting
"humane" methods of execution, efforts to reform capital
punishment faded. By the 1940s and early 1950s the death
penalty reform movement was moribund as concerns of crime
control and domestic security led to calls for harsher
treatment of felony offenders. In such an environment,
arguments that emphasized procedural errors in a particular
case enjoyed more success than broad attacks on a form of
punishment supported by most of the population.35

Finally, midcentury conventions of constitutional
argument discouraged Martin and the other lawyers from
adopting a strategy based on egual protection. Hailed as a
bulwark of liberty for African-Americans upon the passage of
the Fourteenth Amendment, equal protection arguments had
fared poorly since the end of Reconstruction. Cases such as
Plessy v. Ferguson (1896) rendered the equal protection
clause impotent because they gave states tremendous
authority to regulate the conduct of black citizens. As

221
late as 1927, Oliver Wendell Holmes, one of the preeminent
jurists of the twentieth century, derided the clause as the
"usual last resort of constitutional arguments." Almost all
of the NAACP's successes in the field of criminal procedure
had been achieved by invoking the constitutional guarantees
of due process, not equal protection. Only since the end of
World War II had state and federal courts begun to consider
tentatively arguments grounded in equal protection
analysis.36

Nevertheless, Martin decided to pursue the racial
disparity argument for a couple of reasons. On the
practical side, Martin knew that an adverse ruling of the
Hustings Court could be appealed to the Supreme Courts of
Virginia and the United States. If either of those
tribunals agreed to review the cases a final ruling might be
delayed for as long as two years. In the meantime the
attorneys could amass further evidence to convince others of
the validity of their new argument and at the same time
prolong the lives of their clients.37

Furthermore, the new approach provided an opportunity
to link the NAACP's criminal litigation efforts to the equal
protection strategy of the organization's desegregation
campaign. Martin had already achieved some success
desegregating public transportation in Virginia. In July
1950, after winning a number of suits equalizing teacher
salaries and physical plants at black schools, Thurgood

222

Marshall announced that the NAACP would abandon equalization
suits in favor of a direct assault on the "separate but
equal" doctrine. Thus, at the same time that Martin and
Tucker were developing their broad attack on the death
penalty, Oliver Hill and Spottswood Robinson began laying
the groundwork to end segregated education in Virginia.
Both instances represented the beginning of a campaign to
use equal protection arguments, founded upon statistical and
sociological data, to directly challenge systemic racism and
discrimination in American society.38

At 9:30 in the morning on the last day of September,
Martin, Tucker, and Attorney General J. Lindsay Almond
presented two hours of oral argument before Judge Doubles.
Habeas corpus proceedings are technically suits to challenge
unlawful imprisonment, and Doubles' s court, the Hustings
Court, Part II, of the City of Richmond, had jurisdiction to
hear the petition as the first court of record in the city
in which the prisoners were held. The attorneys respected
the fifty-year-old jurist for his integrity and scholarly
reputation. A graduate of the University of Chicago law
school, Doubles had served as dean of the University of
Richmond law school for seventeen years before donning his
robe in 1947. He subscribed to the philosophy of judicial
restraint, however, and believed that courts should defer to
the legislature on matters of public policy. That
jurisprudential approach did not bode well for Martin's

223
attack on a long-standing custom of the state. Martin
probably would have preferred to bring suit in federal
court, most of which tended to look more favorably on the
types of arguments he was making, but in 1948 Congress had
passed an act that required defendants to exhaust all state
remedies before seeking relief in a federal forum.
Therefore, he had to petition the Hustings Court and, if
necessary, appeal its ruling before he could avail himself
of federal remedies.39

Before arguments commenced, Judge Doubles expressed his
displeasure at the political turn that the case had taken.
Ever since he had granted the hearing, he complained, some
people, "either because of their ignorance of a sense of
ethics such as that which restrains a lawyer, or because of
willful design, have mailed communications to the court . .
. tending to influence a court as to what its decision
should be." The correspondence, which Doubles turned over
to the clerk of the court, included twenty-six postcards
asking him to "use the influence of his office" to order a
new trial, seventeen letters from residents of various
states, a signed petition from Suffolk, Virginia, a
telegram, and an editorial from the Richmond News Leader
which complained "that 'due process' has more than run its
course." Doubles assured the attorneys that the statements
would "in no wise influence the court in its decision."40

224
Martin began his argument by summarizing the statutory
history of rape in Virginia. Prior to the Civil War, white
men convicted of assaulting white women could receive no
more than twenty years in prison, while free blacks could
receive up to twenty years or the death penalty. Following
the adoption of the Fourteenth Amendment, the legislature
eliminated the racial distinctions, but the prescribed
punishment for rape remained either a maximum of twenty
years in prison or the death penalty. Martin contended that
this provision "either required, or authorized and
permitted, the courts to make distinctions in the punishment
between white and Negro persons convicted of rape."
Although the legislature increased the permissible prison
term to life imprisonment in 1924, Martin charged that by
that time the courts and juries in Virginia had "without
exception continued in force the immunity of white men" from
the death penalty/1

To bolster these arguments Tucker produced statistics
gathered from state penitentiary records which demonstrated
that fifty-three blacks had been sentenced to death and
forty-five blacks had been electrocuted for rape, while no
white Virginian had ever been executed for the crime.
Although the state records only dated back to 1908, this
pattern had existed, Tucker asserted, "since the beginning
of time." An examination of the reported cases of the
Virginia Supreme Court of Appeals indicated that of the rape

225
cases appealed to the Court before 1908, three had involved
white men who received sentences between ten and twenty
years, while three involved black defendants, all of whom
received the death penalty. One white rapist had been
sentenced to death in 1939, but his subsequent commutation
and pardon supported the theory that capital punishment was
reserved exclusively for African-Americans. The fact that
almost twice as many blacks as whites were sentenced to life
imprisonment further indicated that heavier punishments were
reserved for black defendants. African-Americans were
entitled to the same protection of the law as whites, Tucker
concluded, and "if you can't equalize upward [by executing
more whites], we must equalize downward."4

Martin admitted that this particular charge had "never
been presented to a court anywhere." To support his novel
argument he referred the court to a line of U. S. Supreme
Court decisions involving the exclusion of African-Americans
from jury service. Martin had particular expertise in this
area of the law because, while still practicing in Danville,
he had supervised the collection of evidence of jury
discrimination in the Odell Waller case.43 In Strauder v.
West Virginia (1880), the Court held that laws barring
blacks from jury service violated the equal protection
clause. This ruling ended official exclusion of black
jurors but many states turned to the discretionary authority
of public officials like jury commissioners to circumvent

226
the Court's antidiscriminatory philosophy. Neal v. Delaware
(1881) held that the absence of blacks from juries over a
number of years constituted prima facie evidence of
discrimination, but the courts rarely outlawed the practice
unless specific proof of purposeful discrimination could be
produced. However, in Norris v. Alabama (19 3 5) , another
landmark case to emerge from the Scottsboro trials, the
Court ruled that when the defendants introduced evidence
that no black had sat on a jury in over twenty years, the
Court would presume systematic exclusion unless the state
could prove, beyond mere assertions of good faith by court
officials, that it did not intend to discriminate on a
racial basis. These cases, he argued, demonstrated an
emerging judicial consensus that long-term patterns of
racial discrimination at any stage of the criminal process,
supported by historical and statistical evidence, were
sufficient to prove that a defendant's rights had been
violated, even in the absence of specific proof of
discrimination in his individual case.44

The difficulty with this argument, Martin recognized,
was to overcome the state action requirement of the
Fourteenth Amendment. Since the Civil Rights Cases (1883),
the Supreme Court had held that the Fourteenth Amendment
only prohibited discriminatory state legislation or
discriminatory actions taken by state agencies or officials
acting "under the color of state laws," not discrimination

227
by private citizens. Obviously statutes that specifically
prohibited blacks from jury service or jury commissioners
who purposely excluded African-Americans from the jury pool
satisfied the state action requirement. It was unclear,
however, whether the decisions of individual jurors, who
were generally regarded as reflecting the conscience of the
community rather than the official policies of the state,
constituted state action. Martin contended that because
Virginia law gave juries sole discretion in sentencing, they
performed an essentially judicial function and had, as arms
of the courts, systematically discriminated against blacks
convicted of rape. Recalling the language of Yick Wo v.
Hopkins (1886), one of the Supreme Court's earliest
interpretations of the equal protection clause, Martin
concluded that although the Virginia rape statute might be
fair on its face, it had "been applied and administered with
an evil eye and an unequal hand."45

Although the nominal respondent in the suit was the
superintendent of the penitentiary, W. Frank Smyth, Jr. , a
thirty-five year veteran of the Virginia corrections system,
the real target of the case was the judicial system of
Virginia. According to the Richmond Afro-American , Attorney
General Almond "made an impassioned oratorical plea" on
behalf of the commonwealth's most august institution.
There was only one answer to opposing counsel's "unnecessary
contumacious charges" that Negroes in Virginia were

228
routinely put to death without due process, he argued.
"There's not a word of truth in it and they know it." To
introduce a record of disproportionate rape convictions for
blacks was "tantamount to saying more Negroes have committed
the crime of rape in Virginia." The only relevant issue in
this case was the severity of the crime, and nowhere "in all
the annals of Anglo-Saxon jurisprudence" did there exist a
comparable record of "such unspeakable and bestial horror."
He challenged the defense to recall any similar incident
that involved seven white men "brutally ravishing a
defenseless woman of any color." These cases "represent the
maximum of guilt" and that was why, "irrespective of race or
color, maximum punishment was applied." Almond accused
opposing counsel of abusing the writ of habeas corpus,
"trifling with the court," and delaying the cause of justice
by introducing the issue of racial discrimination into the
case even though the trial judge "was determined to keep it
out." Playing to Judge Doubles 's concerns about external
pressures on the court, Almond complained that the attorneys
had turned the case into "a propaganda football, distorting
not only law but fact before this court."

Samuel Tucker briefly rebutted Almond's arguments. The
attorney general's emphasis on the severity of the offense
proved the argument of the defendants because he implied
that "when Negroes commit the crime of rape upon white women
it is more heinous and dastardly than when white persons

229

commit the same crime upon either white or colored women."
This attitude had produced a dual system of justice that
required "that Negroes should be punished by one standard
and white persons punished by another where the crime of
rape is committed." Citing the case of the Richmond police
officers, Tucker argued that the dual system discriminated
not only against black defendants but also against black
women who were the victims of white rapists. He asked Judge
Doubles not to be blinded by the specific facts of the
Martinsville case because the issue was "not so much the
life or death of the seven" as it was the absence of "equal
and exact justice."

On October 5, Judge Doubles denied the petition. He
emphasized that he was not concerned with the facts of the
case and remarked that "no one can read the records and come
to any other conclusion than that a jury would have been
amiss in its duty if it had failed to fix the maximum lawful
penalty." His only concern was whether the sentence of
death could be lawfully assigned. Turning first to the
performance of the juries in the Martinsville cases, he
found "no evidence of any discrimination in fact." The
records revealed a careful effort by the trial court to
examine and exclude any juror who harbored prejudicial
attitudes against the defendants. Doubles commended Judge
Whittle for the "exemplary manner in which [he] presided
over and supervised the conduct of the cases," adding that

230
his behavior "could well serve as a model for trial judges
throughout the Commonwealth."49

Because the juries in the instant cases had not engaged
in discriminatory conduct, Doubles had to address the
petitioners' "abstract" notion that "because of alleged
discriminations in the past, no Negro can be lawfully-
sentenced to death in Virginia for rape at the present
time." Reviewing the NAACP's statistics on rape convictions
and death sentences, he noted that "the decrease in the
percentage of death penalties given by juries in recent
years is revealing."50 The key issue, however, was whether
this historical pattern of jury conduct constituted state
action. The jury exclusion cases cited by the defendants
were inapposite, Doubles reasoned, because in those cases
the agency or official "responsible for the selection of
jury lists [was] directly under and subject to the control
of the court." By contrast, a jury, "while an arm of the
court in a very necessary sense, nevertheless is not an
agency of the government in the sense that a jury
commissioner is." A jury was "as much a representative of
the defendant as it is of the state, or to state it more
accurately it is not a representative of either party but is
an independent arbiter of the guilt or innocence of the
accused." Even assuming that the juries that had issued
death sentences for rape had been motivated by racial
factors, the petitioners could not demonstrate that an

231
official policy of discrimination, rather than the
independent actions of separate juries, resulted in the
death verdicts. "Certainly 54 different juries sitting over
a period of 42 years in localities from all over the state,"
he asserted, "cannot be said to be acting under any
concerted action, policy or system for which the state is
responsible. "51

Doubles also questioned whether a judicial forum was
the proper arena in which to raise the issues argued by the
defendants. To establish the principle that patterns of
past discrimination barred the state from sentencing blacks
to death, every judge presiding over the trial of a black
defendant for rape would, when instructing the jury, either
have to omit any reference to the death penalty or overturn
any verdict that fixed the penalty at death. "This would
result, of course, in partial repeal of a statute admittedly
fair on its face." In addition, to ensure equal protection,
trials of white defendants would be subject to the same
restrictions. This would be tantamount to repealing the
death penalty clause of the rape statute, a function that
properly belonged to the legislature. Therefore, the only
remedy for the situation described by the defendants was to
seek modification of the statute through the legislative
process, because Doubles was not aware of "any judicial
device whereby the courts could lawfully achieve such
results."52

232

Following Doubles' s pronouncement the attorneys
immediately made plans to appeal the ruling to the Virginia
Supreme Court of Appeals. On October 19, Martin filed a
petition for a writ of error, charging that Doubles
"apparently did not grasp the legal issues involved and did
not give due weight to the petitioners' constitutional
rights." Between the Hustings Court ruling and the filing
of the petition Judge Whittle had rescheduled the executions
for November 17 and November 20. The court was not
scheduled to convene until the twentieth, so Chief Justice
Hudgins took the unusual step of calling a special session
for November 3. At the hearing Martin and Tucker continued
their argument that white men "have always enjoyed an
immunity from the death penalty for rape in Virginia" while
capital punishment "has been imposed solely upon Negro men
convicted of rape upon white women." Martin took issue with
Doubles 's contention that the lower court could not lawfully
alter the term of punishment set by a jury, countering that
any finding of the jury may be overturned if it violates the
constitutional and legal rights of the accused, regardless
of the weight of the evidence. Lindsay Almond filed an
opposing brief and attended the one-hour hearing, but he did
not speak because court rules only permitted the party that
applied for a writ of error to make oral arguments. After
recess for lunch the court returned and announced that it
had rejected the petition. The justices did not provide any

233
reasons for denying the writ, but their questions during
oral argument exhibited several concerns. Hudgins
emphasized the facts of the case and suggested that no other
crime in memory evidenced the brutality of the "mass rape at
Martinsville." Justice Miller echoed Doubles ' s concern that
abolishing the death penalty for blacks would open the door
for equal protection claims by white defendants, effectively
abolishing the death penalty, while Justice Eggleston
worried that if defense counsel's statistical evidence were
accepted, "no Negroes could be executed unless a certain
number of white people" were killed as well. Upon leaving
the courthouse, Martin informed reporters that he would
appeal immediately to the U. S. Supreme Court for a writ of
certiorari and that he would not ask Governor Battle for a
stay of execution "unless it is absolutely necessary."53

Because only two weeks separated the Martinsville Seven
from their scheduled encounter with the electric chair, the
CRC and the Committee to Save the Martinsville Seven
announced plans to send a national delegation to Richmond on
November 15 to demand a pardon from the governor. The joint
announcement by William Patterson and James F. Smith,
chairman of the committee, confirmed many Virginians'
suspicions that the committee shared the radical political
beliefs of the CRC. Again the organizations emphasized the
necessity of mass popular protest to save the lives of the
Seven. "The lesson that the people of Virginia must learn,"

234
Smith admonished, "is that they cannot rely on the judges
appointed by the Byrd-dominated state legislature." The
action of the Supreme Court of Appeals "once again proves
that even the most logical arguments by the most able
lawyers cannot convince judges who are themselves steeped in
the white supremacy system of Virginia's rulers." Patterson
commended the NAACP for its efforts and encouraged them to
continue its legal strategy, but he noted that "the decision
is really in the hands of the people. We believe that these
monstrous attacks upon the Constitutional liberties and
human dignity of Negroes will not stop until an outraged
public calls a halt."54

Despite its criticism of the NAACP ' s strategy, the CRC
began incorporating the sentencing disparity argument into
its publicity. An announcement advertising the delegation
to Richmond cited the statistics that the attorneys had
collected and an editorial in the Daily Worker quoted
extensively from Martin's brief. The Southern Conference
Educational Fund sent Governor Battle similar statistics for
thirteen Southern states that revealed that 187 blacks and
fifteen whites had been executed for rape between 1938 and
1948. The influence of the NAACP 's statistics was not
limited to leftist organizations, however. After the
Hustings Court ruling, P.B. Young, the conservative editor
of the Norfolk Journal and Guide, wrote several editorials

235
that reflected his frustration over the state's double
standard of punishment.55

The sentencing disparity arguments also sensitized
people to the treatment that white suspects and defendants
involved in interracial crimes received. For example, in
the second week of November, Martinsville authorities
released Vernon Firth, a white service station owner, on
bail after he was charged with criminally assaulting a black
woman. Two weeks later an all-white jury in Isle of Wight
County acguitted William B. Whitley, a white mill worker,
of sexually assaulting a sixteen-year-old black girl. These
cases alarmed many black and white Virginians and lent added
credence to the argument that Virginia maintained a double
standard for blacks accused of rape. Ironically, the Daily
Worker remained unaware of its own double standard as it
accused Firth's friends of attempting "to smear the
character of" his alleged victim just before it asserted
that Ruby Floyd had "told a story full of discrepancies,
then disappeared and has not been found since."56

In addition to the Richmond delegation, many branches
of the CRC organized local rallies. The most ambitious
program was undertaken by the Civil Rights Congress of
Michigan, which invited Josephine Grayson on her "first trip
North" to speak at a rally with the author Howard Fast.
According to Anne Shore, leader of the Detroit chapter,
"Mrs. Grayson really took the town by storm." After she

236
spoke to the mass meeting she stayed in Detroit for a week
to be interviewed by newspaper reporters, speak to the
weekly meeting of the Baptist Ministers' Conference, and
address several trade union meetings. According to Shore,
Mrs. Grayson was "able to break through several 'right-wing'
unions," all of which contributed money either to the CRC,
the NAACP, or Mrs. Grayson personally. As a result of this
success Mrs. Grayson made trips to Chicago and other
midwestern cities as well.57

The activities of the CRC drew a caustic response from
the NAACP. At the annual membership meeting of the NAACP
Legal Defense Fund, Thurgood Marshall informed the members
of the CRC's plans and promised to oppose the organization
vigorously. Marshall, Martin, and Tucker took great pains
to distance themselves from the protest effort for fear that
it would damage their clients' chances of success. "We want
to make it clear to the general public, and particularly to
those whose primary interest is equal justice for the
Martinsville Seven," they announced, "that neither the NAACP
nor the lawyers representing the defendants . . . knew
anything about this move." The interest of the CRC, they
continued, "lies only in espousing their political
philosophy." Although Patterson and other CRC leaders
undoubtedly linked the success of the Martinsville campaign
to the continued vitality of the organization and the
Communist party, the NAACP 's suspicion of their motives was

237
not entirely merited. A list of rules distributed to each
participant in the delegation admonished: "Do not give in to
any provocation. Avoid arguments with anyone; such
arguments will not help save the life of the Seven." Other
rules emphasized the need for harmony to accomplish the
purpose of the delegation — a full pardon for the condemned
men. However, the historical animosity between the
organizations, the CRC's frequent criticisms of the NAACP,
and fundamental disagreements about strategy convinced
Marshall and the other lawyers that cooperation was
impossible. 58

On November 10, one week before the executions were to
begin, Governor Battle received a message from the CRC,
informing him of the delegation and requesting an audience
with him. Later that day, Martin Martin met with the
governor to inform him that he would not be able to petition
the Supreme Court before the executions because of delays by
the attorney general's office in producing the records
needed to prepare his case. That evening, Battle announced
that he would grant a final stay of approximately seventy-
five days "to allow defendants full opportunity to assert
any legal right they may have." He also noted that a
reprieve was justified because the rules of the Supreme
Court allowed the state thirty days to answer an appeal.
Martin promised to have the petitions ready within a week.59

238
Because of the stay the CRC prudently cancelled the
Richmond delegation, substituting it with a "victory parade"
through Harlem that featured uniformed black veterans of
World War II and William Patterson's first public address
since returning from a European tour. Patterson praised the
NAACP "for the magnificent manner in which this case was
handled by its legal staff" but his other statements implied
that the mass protest efforts of his organization,
especially the threat of a march on the state capital, had
secured the reprieves. "Undoubtedly, the favorable response
of the people" to the CRC ' s calls for mass action "was a
vital factor in influencing the action of the governor." To
Martin and the other attorneys this was yet another example
of the CRC's manipulation of the accomplishments of the
Association to justify its tactics of political protest.
Martin reacted so bitterly to Patterson's statements that
Thurgood Marshall was forced to make a statement crediting
Martin, "who has borne the brunt of the appeals of this
case," and his staff with securing the stays. The reprieves
"had nothing whatsoever to do with this proposed march on
Richmond, which could only have done more harm for the seven
men involved and for the cause of justice."60

During the last week of November, Martin, Tucker, and
Roland Ealey, aided by Marshall, submitted their petition to
the U. S. Supreme Court. They continued the argument
originally developed in the Hustings Court that in cases of

239
rape involving white women, Virginia courts and juries had
always reserved the death penalty for blacks while "white
men have always had an immunity from such penalty." The
attorneys urged the court to "once and for all reemphasize
the proposition that no state shall make or enforce any law
reguiring, authorizing or permitting different and greater
punishment upon some of its citizens than upon others by
reason of race or color." Although the Virginia statute was
not unconstitutional on its face, they argued that "it
should also be made clear that customs, practices and usages
having the same prohibited result are likewise contrary to
the supreme law of the land." Reviewing the execution
statistics of the commonwealth, they warned the Court that
the pattern of executions "constitutes a serious challenge
to an essential principle of our democratic government:
Egual and exact justice to all men of whatever race, creed
or persuasion." According to a Supreme Court official at
the time, this case marked the first time that egual
protection arguments had been used to challenge unegual
criminal sentencing.61

A month later Lindsay Almond submitted a reply brief
that asked the Court to dismiss the petition because "it is
completely hostile to the jury system to argue that persons
convicted of the same offense should receive the same
punishment without considering the heinousness of the
offense and the extenuating circumstances." Each case is to

240
be evaluated on its specific facts, he argued, and none of
the reported cases cited by the petitioners demonstrated
that any white person had been guilty "of offenses of egual
atrociousness. " Furthermore, those cases invalidated their
argument that a "double standard" of punishment had been
applied because each jury had been properly apprised of the
full range of penalties, including death, regardless of the
defendant's race. In any event, he concluded, the only
pertinent issue was whether the seven prisoners had been
denied due process at their particular trials. No evidence
existed in the record that any of the six juries had
discriminated against the defendants or that their race or
that of the victim influenced the jurors in any way.62

On December 29, 1950, the justices met in conference to
consider the petition for a writ of certiorari. Four days
later, on the second day of the new year, the Court denied
the writ. Once again the Court did not comment upon its
reasons, but a memorandum circulated to the justices
revealed some concerns that might have been raised in
conference. One difficulty, the memorandum noted, "lies in
making a finding of discriminatory punishment upon the basis
of action taken by widely separated juries over a long
period of years," especially when "no contention is made
that the statute itself is discriminatory (it plainly is
not) or that the trial judges have discriminated in their
charges to the jury." Based on the NAACP's statistics and

241
"common knowledge," the writer admitted that "Virginia
juries might well be more prone to give the death penalty to
Negroes convicted of raping white women." But even if the
action of those juries constituted state action, "the
principal difficulty lies in the unavailability of a
practical remedy." If the petitioners were to have any
relief, then "all negroes given the death penalty in
Virginia for rape of a white woman will be entitled to a
reversal until enough white men are executed to bring the
figures into balance." In a handwritten notation Justice
Harold Burton added that requiring black representation on
juries, a practice that was already being enforced by the
Court, was "the only effective way to get at this type of
discrimination. "63

The strategy adopted by Martin and Tucker during the
collateral appeals stage meshed well with the NAACP's belief
that social and cultural factors influenced legal
development as much as, if not more than, prescribed
doctrines of legal behavior. Much as Thurgood Marshall,
Spottswood Robinson, and Oliver Hill began to challenge the
formalist doctrine of separate but equal by demonstrating
the actual inequality of schools, Martin and Tucker were
convinced that the fairness of capital punishment could be
contested if they could demonstrate that unequal sentences
resulted from racial factors rather than other
considerations like the magnitude of the crime. This

242
approach grew naturally from their training at Howard Law
School that lawyers were either "social engineers or
parasites. "64

The NAACP's efforts failed, however, because its new
strategy did not conform to the judiciary's conception of
the proper method of legal argument or the proper scope of
judicial review. Martin and Tucker had amassed compelling
evidence of sentencing disparity based on race in rape
cases, but to transform that evidence into a legal remedy
reguired courts willing to consider empirical, historical,
and other extralegal methods of proof. The type of evidence
that the attorneys produced to support their allegations
appealed mainly to jurists who wanted to accomplish social
reform through legal means, a mantle that neither the
Virginia courts nor the Supreme Court under Chief Justice
Vinson wanted to assume. Throughout the twentieth century,
and especially in this period, the Virginia Supreme Court of
Appeals was rarely persuaded by the types of sociological
and empirical arguments employed by the NAACP in its brief.
The Supreme Court had been more amenable to sociological
proof, but usually as evidence of the "reasonableness" of
state legislation, not as a justification for striking it
down. The Vinson Court especially preferred arguments based
on legal precedent to more innovative approaches to legal
change.65

243
The NAACP's strategy also required a willingness on the
part of the courts to second-guess the judgments of juries
and legislatures and place the values of due process and
equal protection above the punitive function of the criminal
law. Every judge who considered the habeas corpus
proceedings emphasized the heinous nature of the crime and
the evidence linking the defendants to the attack. Given
the brutality of the offense and the obvious guilt of the
defendants, the courts were reluctant to invade the sanctity
of the jury room and impute racially discriminatory motives
for the death sentences. This concern was compounded when
the attorneys argued that a historic pattern of
discrimination existed. The large number of possible
circumstances that any given jury in any locality might
consider in assessing punishment made the task of proving a
statewide policy against blacks almost insurmountable,
especially given the conservatism of the courts.66

The difficulty of implementing a remedy for the
constitutional violations alleged by the NAACP also daunted
the courts. Assuming that discrimination existed, the
courts had two options. First, they could strike down
Virginia's death penalty statute as unconstitutional per se.
This would have been difficult because the statute itself
did not specifically prescribe punishments based on race.
Furthermore, the courts of Virginia very rarely exercised
judicial review in that fashion. The U. S. Supreme Court

244
was more willing to scrutinize state criminal regulations,
particularly with regard to guarantees of fairness during
arrest and trial, but it rarely interfered with the states'
prerogative to affix appropriate penalties for convicted
felons. Since the courts viewed the abolition of the
death penalty as an exclusively legislative domain, the only
remedy for the disparity appeared to be a suspension of
executions of African-Americans until a proportionate number
of whites had been executed. Such an approach would not
only violate accepted standards of judicial power and equity
to individual defendants, it would also upset a system of
social control based upon racial difference.68

Lastly, the change in strategy by the NAACP gave the
involvement of the Civil Rights Congress added significance.
As long as the attorneys adhered to traditional due process
arguments they could distance themselves from organizations
that espoused more fundamental criticisms of the prevailing
legal system. By initiating a broad challenge to
discrimination in the administration of justice, however,
they fueled radical complaints about the American social,
legal, and economic order. The tactical and strategic
techniques that differentiated the CRC from the NAACP grew
less significant to public officials as the goals of the two
organizations grew more similar. Governor Battle, for
example, explicitly denied Martin's request for clemency in
part for fear of appearing to be swayed by Communist

245
propaganda. The judges involved in the case were more
circumspect but they were equally aware of the CRC ' s
involvement, as evidenced by Judge Doubles' s denunciation of
outside interference in the judicial process. Martin,
Tucker, and Ealey thus faced the dual challenge of
convincing a skeptical judiciary to accept their novel equal
protection arguments while simultaneously distancing
themselves from left-wing organizations that championed
similar criticisms of Virginia's structure of punishment.

Notes

1. Steven F. Lawson, David R. Colburn, and Darryl Paulson,
"Groveland: Florida's Little Scottsboro," Florida Historical
Quarterly 65 (July 1986): 16-17; Charles H. Martin, "Race,
Gender, and Southern Justice: The Rosa Lee Ingram Case,"
American Journal of Legal History 29 (1985): 256-57, 263-64;
Charles H. Martin, "The Civil Rights Congress and Southern
Black Defendants," Georgia Historical Quarterly 71 (Spring
1987): 45-50; Gerald Home, Communist Front? The Civil Rights
Congress, 1946-1956 (Rutherford, N.J., 1988), 74-98, 192-95,
205-12.

2. Patterson to Wilkins, 7 June 1950, Box A361, General
Office Files, NAACP Papers.

3. Marshall to Patterson, 9 June 1950, Box A361, General
Office Files, NAACP Papers. Roy Wilkins later informed
Patterson, "I have nothing to add to Mr. Marshall's letter,
which expresses substantially what I would have said had I
been in the city." Wilkins to Patterson, 16 June 1950, Box
A361, NAACP Papers.

4. Patterson to Anne Shore, 14 June 1950, File p92, Box 82,
CRC Papers; Patterson to Marshall, 15 June 1950, Box A361,
General Office Files, NAACP Papers.

5. Daily Worker, 12 June 1950, p. 4, and 19 June 1950; Press
Release, 16 June 1950, File a232, Box 11, CRC Papers; Herman
Katzen to Marshall, 23 June 1950, Box A369, and Marshall to
Katzen, 5 July 1950, Box A361, General Office Files, NAACP
Papers.

246

6. Donald H. Partington, "The Incidence of the Death Penalty
for Rape in Virginia," Washington and Lee Law Review 22
(Spring 1965): 68-70; William J. Bowers, Legal Homicide: Death
as Punishment in America, 1864-1982 (Boston, 1984), 22; David
C. Baldus, George Woodworth, and Charles A. Pulaski, Jr.,
Egual Justice and the Death Penalty: A Legal and Empirical
Analysis (Boston, 1990), 248-50; Guy Johnson, "The Negro and
Crime," Annals of the American Academy of Political and Social
Science 217 (September 1941): 93-104; Harold Garfinkel,
"Research Notes on Inter- and Intra-racial Homicides," Social
Forces 27 (May 1949): 369-81; Guy Benton Johnson and Guion
Griffis Johnson, Research in Service to Society: The First
Fifty Years of the Institute for Research in Social Sciences
at the University of North Carolina (Chapel Hill, 1980), 140-
41; We Charge Genocide (New York, 1951) , 160; interview with
Roland Ealey, 13 August 1991. On the SCEF see Irwin Klibaner,
Conscience of a Troubled South: The Southern Conference
Educational Fund, 1946-1966 (Brooklyn, N.Y., 1989).

7. Richmond Times-Dispatch, 21 June 1950, p. 7; Norfolk
Journal and Guide, 1 July 1950, p. 22; Battle to Rep. Burr P.
Harrison, 23 June 1950, and "A Petition to His Excellency John
S. Battle, Governor of Virginia, for Commutation of Sentence,"
n.d., both in Box 115, Battle Papers.

8. Daily Worker, 5 July 1950, p. 9; John H. Marion to
Virginius Dabney, 22 June 1950, Box 8, Papers of Virginius
Dabney, Alderman Library, University of Virginia,
Charlottesville, Virginia (hereinafter cited as Dabney
Papers) .

9. Richmond Afro-American, 24 June 1950, p. 3; Daily Worker,
30 June 1950, p. 2, and 5 July 1950, p. 9; Norfolk Journal and
Guide, 1 July 1950, p. 13; Program, "Civil Rights Congress —
Madison Square Garden Meeting," 28 June 1950, File al81, Box

9. CRC Papers.

10. Daily Worker, 15 June 1950, p. 3; Press Release, 13
February 1951, File a233, Box 11, CRC Papers; Martin, "The
Civil Rights Congress," 41; Home, Communist Front?, 43, 46.
Susan Brownmiller asserts that radical organizations often
blamed the victims of rape in order to support the dogma that
charges of interracial rape were invariably concocted to
control unruly blacks. Brownmiller, Against Our Will: Men,
Women, and Rape (New York, 1975), 227-29.

11. Approximately 90 letters asking Governor Battle for
clemency on behalf of the Martinsville Seven are extant in Box
115, Battle Papers.

247

12. Lillie Thomas to Battle, 6 June 1950, and Arthur
Hirshfield to Battle, 13 June 1950, both in Box 115, Battle
Papers. The form letter from the Council of Churches is
attached to a letter from Frank D. Daniel to Battle, 22 June
1950, Box 115, Battle Papers. See also John H. Marion to
Virginius Dabney, 22 June 1950, Box 8, Dabney Papers. The
facts of the Richmond police case are summarized in Davis v.
Commonwealth, 186 Va. 936 (1943). Editorials in the Richmond
Afro-American and the Norfolk Journal and Guide also mentioned
the case. See Afro-American , 15 July 1950, p. 3, and 5 August
1950, p. 4; and Journal and Guide, 8 July 1950, p. 14.

13. Frank Daniel to Battle, 22 June 1950; Mr. and Mrs. Brown
to Battle, 8 June 1950; and Aaron Holmes to Battle, n.d., all
in Box 115, Battle Papers.

14. Morris U. Schappes to Battle, 7 June 1950; Hanah Levin
to Battle, 8 June 1950; Gerda Lerner to Battle, 8 June 1950;
Bernard M. Dabney, Jr., to Battle, 6 June 1950; Bessie G. Osby
to Battle, 27 May 1950; Carrie Shelton to Battle, 3 May 1950,
all in Box 115, Battle Papers.

15. Hampton to Battle, 21 June 1950; Millner to Battle, n.d.;
Hairston to Battle, n.d.; Grayson to Battle, 21 June 1950;
Anderson to Battle, 27 June 1950; Battle to Grayson, 23 June
1950, all in Box 115, Battle Papers; Richmond Afro-American .
10 February 1951, p. 1.

16. Peter Ros Henriques, "John S. Battle and Virginia
Politics: 1948-1953" (Ph.D. diss., University of Virginia,
1971), 22-25, 38-40, 69, 177, 187, 188-93, 203-6, 316-17; J.
Harvie Wilkinson III, Harry Byrd and the Changing Face of
Virginia Politics (Charlottesville, 1968), 91-99; Elkan
Abramowitz and David Paget, "Executive Clemency in Capital
Cases," New York University Law Review 39 (January 1964): 141-
42 n. 27, 178; Battle to Clara J. Napper, 12 June 1950, Box
115, Battle Papers.

17. See Lewis E. Lawes, Twenty Thousand Years in Sing Sing
(New York, 1932) .

18. Richmond Times-Dispatch, 8 July 1950, p. 2; Petition for
Commutation, n.d., Box 115, Battle Papers.

19. Richmond Times-Dispatch, 8 July 1950, p. 2.

20. Ibid.

21. M. Elizabeth Kline to "Dear Friend," 13 July 1950, Box
A369, General Office Files, NAACP Papers; Press Release, 12
July 1950, File a232, Box 11, CRC Papers; Daily Worker, 14
July 1950, p. 5; 17 July 1950, p. 5; and 23 July 1950.

248

22. Richmond Afro-American, 15 July 1950, p. 3, and 22 July
1950, p. 3; Norfolk Journal and Guide, 8 July 1950, p. 14.
The Journal and Guide harbored much more conservative views
than most other African-American periodicals of the period,
and many blacks criticized its editor, P. B. Young, for his
restrained criticisms of the Martinsville controversy.
Nevertheless, more people read the Journal and Guide than any
other black newspaper in the South. H. Lewis Suggs, "Black
Strategy and Ideology in the Segregation Era: P. B. Young and
the Norfolk Journal and Guide, 1910-1954," Virginia Magazine
of History and Biography 91 (April 1983): 190.

23. Statement of Governor Battle re: Joe Henry Hampton et
al., 24 July 1950, Box 115, Battle Papers.

24. Ibid.

25. Richmond Afro-American , 29 July 1950, p. 6, and 5 August
1950, p. 4.

26. On the factors persuading state governors to commute
death sentences, see Abramowitz and Paget, 159-77; and Elmer
H. Johnson, "Selective Factors in Capital Punishment," Social
Forces 36 (December 1957): 165-69.

27. Daily Worker, 26 July 1950, p. 3.

28. Ibid.; Flyer, "Save the Martinsville Seven From Death,"
Official File, Papers of Harry S. Truman, Harry S. Truman
Library, Independence, Missouri (hereinafter cited as Truman
Papers) ; Richard H. Frost, The Mooney Case (Stanford, 1968) ,
285-319; Joseph F. Dinnen, The Purple Shamrock: The Honorable
James Michael Curley of Boston (New York, 1949), 307.

29. Interview with Roland Ealey, 13 August 1991; Petition for
Writ of Habeas Corpus, Hairston v. Smyth, Hustings Court of
the City of Richmond, Part II, 26 July 1950, and Order,
Hairston v. Smyth, 26 July 1950, copies located in File a230,
Box 11, CRC Papers.

30. Richmond Afro-American , 26 August 1950, p. 6; Norfolk
Journal and Guide , 26 August 1950, p. 22; Daily Worker, 23
August 1950, p. 9.

31. Telegram, Patterson to White, 27 July 1950, and White to
Patterson, 31 July 1950, both in Box A361, General Office
Files, NAACP Papers.

32. Russell Meek, executive secretary of the Harlem CRC, to
"Dear Friend," 7 September 1950, Box A369, General Office
Files, NAACP Papers; John Pittman, "Power Shown in the McGee
Case," Daily Worker, 1 August 1950, p. 6.

249

33. Norfolk Journal and Guide (Virginia ed.), 9 September
1950, p. 19; Richmond Afro-American . 29 July 1950, p. 6, and
9 September 1950, p. 20.

34. Frank W. Miller et al . , Criminal Justice Administration.
4th ed. (Westbury, N.Y., 1991), 1235-36, 1245-46; interview
with Oliver Hill, 13 August 1991.

35. Bowers, 10-14; Michael Meltsner, Cruel and Unusual: The
Supreme Court and Capital Punishment (New York, 1973), 18;
Philip E. Mackey, ed. , Voices Against Death: Classic Appeals
Against the Death Penalty in America, 1787-1973 (New York,
1976) , xli.

36. William M. Wiecek, Liberty Under Law: The Supreme Court
in American History (Baltimore and London, 1988), 157-58;
Plessy v. Ferguson. 163 U.S. 537 (1896). Justice Holmes's
comment appears in Buck v. Bell, 274 U.S. 200, 208 (1927).

37. Richmond Times-Dispatch, 28 July 1950, p. 4; Norfolk
Journal and Guide (Virginia ed.), 5 August 1950, p. 5.

38. Richard Kluger, Simple Justice (New York, 1976), 474-79;
Mark V. Tushnet, The NAACP's Legal Strategy against Segregated
Education, 1925-1950 (Chapel Hill and London, 1987), 136-40;
interview with Oliver Hill, 13 August 1991.

39. Charles Liebman, Directory of American Judges (Chicago,
1955) , n.p. ; interview with Roland Ealey, 13 August 1991; Act
of June 25, 1948, Pub. L. 773, ch. 646, 62 Statutes at Large
869, 967. On the exhaustion doctrine see William F. Duker,
A Constitutional History of Habeas Corpus (Westport, Conn. ,
1980) , 203-210.

40. Richmond Times-Dispatch , 1 October 1950, sec. B, p. 1.
The editorial appeared in the Richmond News Leader, 22
September 1950, p. 12.

41. Joint Brief on Behalf of Petitioners, Hampton v. Smyth,
2-3; Petition for Writ of Habeas Corpus, Hairston v. Smyth.
2, copies located in File a230, Box 11, CRC Papers.

42. Joint Brief, 4-7; Supplement to Joint Brief on Behalf of
the Petitioners, Hampton v. Smyth, Appendix, copy in File
a230, Box 11, CRC Papers.

43. Richmond Times-Dispatch , 1 October 1950, sec. B, p. 1;
Richard B. Sherman, The Case of Odell Waller and Virginia
Justice, 1940-1942 (Knoxville, 1992), 64, 90-91.

250

44. Strauder v. West Virginia, 100 U.S. 303 (1879); Neal v.
Delaware. 103 U.S. 370 (1881) ; Norris v. Alabama. 294 U.S.
587 (1935) ; Supplement to Joint Brief, 2-5. On the
development of constitutional doctrine on jury exclusion see
Dan T. Carter, Scottsboro: A Tragedy of the American South
(Baton Rouge, 1969), 320-24.

45. Civil Rights Cases. 109 U.S. 3 (1883); Yick Wo v.
Hopkins, 118 U.S. 356 (1886) ; Richmond Times-Dispatch , 1
October 1950, sec. B, p. 1; Supplement to Joint Brief, 4-5;
Petition for Writ of Habeas Corpus, 2. On state action and
"color of law," see Laurence H. Tribe, American Constitutional
Law; A Structure for Liberty (Mineola, N.Y,, 1978), 1147-74.

46. Richmond Afro-American , 7 October 1950, p. 1. W. Frank
Smyth began his career as a prison guard and supervised a
convict labor program at a lime-grinding plant near Staunton.
In 1929 he came to the penitentiary to oversee its industrial
shops. He later served as assistant superintendent and became
superintendent in 1942. See Paul W. Keve, The History of
Corrections in Virginia (Charlottesville, 1986), 122-23, 181,
278.

47. Richmond Times-Dispatch, 1 October 1950, sec. B, p. 1.

48. Ibid.; Supplement to Joint Brief, 5.

49. Opinion, Hampton et al. v. Smyth, 3, 5, copy located in
Joe Henry Hampton File, Martinsville Circuit Court.

50. Between 1908 and 1919, 11.3 percent of the African-
Americans convicted of rape in Virginia were sentenced to
death. Between 1940 and 1950 that figure fell to 1 . 8 percent.
Ibid., 4.

51. Ibid., 5-7.

52. Ibid., 5-6.

53. Richmond Times-Dispatch, 20 October 1950, p. 4; 28
October 1950, p. 4, and 4 November 1950, p. 1; Richmond Afro-
American, 28 October 1950, p. 14; and 4 November 1950, p. 8.

54. "A Call for a Crusade Against Jim Crow Justice in
Virginia," 28 October 1950, File a229, Box 11, CRC Papers;
Press Release, 6 November 1950, File a227, Box 11, CRC Papers;
Daily Worker, 12 October 1950, p. 4; Richmond Afro-American ,
11 November 1950, p. 3.

55. "Why the Crusade on the Martinsville Seven?," 8 November
1950, File a234, Box 11, CRC Papers; Daily Worker. 24 October
1950, p. 6; and 22 November 1950, p. 8; Norfolk Journal and

251

Guide, 14 October 1950, p. 12, and 2 December 1950, p. 12;
Henry Lewis Suggs, P. B. Young, Newspaperman: Race, Politics,
and Journalism in the New South, 1910-1962 (Charlottesville,
1988) , 152-53.

56. Daily Worker, 8 November 1950, p. 1, and 24 November
1950, p. 3.

57. Arthur McPhaul, executive secretary of the Civil Rights
Congress of Michigan, to "Dear Pastor," 27 October 1950;
"Report of Campaign around Martinsville Seven, Detroit Civil
Rights Congress," November 1950; and Shore to Aubrey Grossman
and Patterson, 11 November 1950, all in File p92, Box 82, CRC
Papers; Lester Davis, executive secretary of the Civil Rights
Congress of Illinois, to Grossman, 17 November 1950, File p62,
Box 80, CRC Papers.

58. Minutes of the Membership and Annual Meeting of NAACP
Legal Defense and Educational Fund, Inc., 13 November 1950,
Box 44, Spingarn Papers; "Proposed Rules for Delegation," File
a233, Box 11, CRC Papers; Norfolk Journal and Guide, 18
November 1950, p. 3.

59. Richmond Times-Dispatch , 11 November 1950, p. 1; Richmond
Afro-American , 18 November 1950, p. 1.

60. Press Release, "Martinsville Crusade Cancelled When
Governor Grants Stay," n.d., File a227, Box 11, CRC Papers;
Elaine Ross to Oliver Martin, 8 November 1950, File a229, Box
11, CRC Papers; Poster, "They Shall Not Die!!," n.d., File
a234, Box 11, CRC Papers; Daily Worker, 19 November 1950;
Richmond Afro-American, 18 November 1950, p. 2, and 2 5
November 1950, p. 5; Norfolk Journal and Guide, 25 November
1950, p. 2.

61. Norfolk Journal and Guide, 25 November 1950, p. 1.

62. Richmond Afro-American , 30 December 1950, p. 1.

63. Hampton v. Smyth, 340 U.S. 914, No. 245 Misc. (1951),
cert, denied; Conference List, 29 December 1950, Frankfurter
Papers (microfilm ed.), Part I, Reel 54, frames 0659-60; Cert.
Memorandum, No. 245 Misc. 1950 Term, Box 220, Burton Papers.

64. Meltsner, 27-28; Tushnet, 117-19; Kluger, 128.

65. Tushnet, 161; Dennis D. Dorin, "Two Different Worlds:
Criminologists, Justices and Racial Discrimination in the
Imposition of Capital Punishment in Rape Cases," Journal of
Criminal Law and Criminology 72 (Winter 1981): 1671-90; Paul
Rosen, The Supreme Court and Social Science (Urbana, 1972) ,
202-3, 212-13; Thomas R. Morris, The Virginia Supreme Court:

252

An Institutional and Political Analysis (Charlottesville, Va. ,
1975), 77-78; Paul L. Murphy, The Constitution in Crisis
Times, 1918-1969 (New York, 1972), 276-78.

66. Partington, 56-57; Rosen, 218-19; Samuel R. Gross and
Robert Mauro, Death and Discrimination: Racial Disparities in
Capital Sentencing (Boston, 1989) , 120-21.

67. See, for example, Louisiana ex rel. Francis v. Resweber,
329 U.S. 459 (1947), in which the Court held that a second
trip to the electric chair after a mechanical failure aborted
the first attempt did not constitute cruel and unusual
punishment or violate the double jeopardy clause of the Fifth
Amendment .

68. Meltsner, 24; Partington, 63; Morris, 158-60.

CHAPTER 8
THE ELEVENTH HOUR

The Supreme Court's denial of certiorari on January 2
left exactly one month until the first executions were
scheduled. The NAACP had not convinced any judges of the
efficacy of its sentencing disparity arguments nor had the
CRC succeeded in persuading the state and federal executive
to intervene in the case. "The slim thread of American
jurisprudence," wrote a reporter for the Richmond Afro-
American, "was fast unravelling over the heads of the seven
condemned men." Nevertheless, as the executions
approached, the two civil rights organizations adhered to
their respective philosophies — the CRC by continuing its
mass protests and the NAACP by appealing to the legal
system.

Following the Supreme Court's decision, William
Patterson warned that the Court would prove to "be a weapon
of terror against the Negro people in the country in the
coming year." Because the Martinsville Seven could not rely
on the courts for justice, he announced that "the first
fight of '51" would be a "crusade to Virginia" co-sponsored
by the CRC and the Virginia Committee to Save the
Martinsville Seven. Patterson invoked the CRC lore that the

253

254
threat of a similar delegation in the previous November had
persuaded Governor Battle to grant a stay of execution.
This time, on January 30, between 2 50 and 500 "democracy-
loving whites and Negroes" would enter the governor's office
bearing fifty thousand signatures demanding that John Battle
"revoke this infamous sentence."2

While Patterson exhorted the masses, Aubrey Grossman,
the national organizational secretary of the CRC, worked
behind the scenes to ensure an orderly and effective
delegation. An attorney with Marxist sympathies, Grossman
had polished his organizational skills in the labor movement
during the 1930s and 1940s. He urged the leaders of the
local chapters to "go ahead under full speed" to raise
money, circulate petitions, and secure statements from
prominent citizens on behalf of the seven. He recommended
that they not organize work stoppages or student strikes
"unless the community feeling has reached such a point that
this is a natural result." He asked all chapters east of
the Mississippi River to send delegates to Richmond and
established modest quotas for each branch. In order to keep
the plans for the delegation operating smoothly he insisted
that the chapter secretaries "report twice a week on
everything which has been or is planned on the campaign" and
he asked for reports by telegram after January 20. As the
date for the delegation drew nearer Grossman pleaded with

255
"the many chapters that have not yet reported to us" to let
him know what actions they were taking.3

In order to publicize the delegation, Grossman arranged
to have Josephine Grayson speak at several church and trade
union meetings around the country. Grossman had broached
this subject with her in December after her impressive
showing in Detroit. At the time he estimated that she would
have to spend about two weeks away from her home in
Portsmouth, Virginia, mostly in the New York area. After
the CRC laid plans for the delegation, however, she spent
most of the month speaking at rallies in Virginia, the
Northeast, and the Midwest. Mrs. Grayson began her tour
with meetings in Richmond and Norfolk, then headed north to
Boston, Hartford, New Haven, and New York City. In Chicago
she appeared at a protest rally with Mahalia Jackson, the
well-known gospel singer, before continuing on to Wisconsin
and Ohio. In making the case for saving the life of her
husband and the other men, Mrs. Grayson stressed the
inconsistencies in Ruby Floyd's testimony and questioned her
disappearance. DeSales Grayson wrote to the CRC that he was
proud of his wife and "would like to get back with her and
my five children. ... So all you good people keep up the
good work. "4

The efforts of Aubrey Grossman and Josephine Grayson
inspired a number of CRC chapters to join the delegation.
Chapters in Chicago and Detroit promised fifty delegates

256
apiece. Branches from New York and Pennsylvania also
promised large contingents. Chapters that could not afford
to send delegates scheduled local rallies. Even the Arizona
CRC promised one delegate, the seventy-three-year-old
chairman of the Phoenix chapter, Dorothy Murphy.5 The
delegation also attracted participants from outside the
chapters. Grossman's publicity efforts succeeded in
obtaining the participation of the People's Defense League,
a biracial civil liberties organization based in North
Carolina, and several ministerial alliances from Florida,
Chicago, and Philadelphia. The Martinsville Seven also
received tremendous labor support. The executive board of
the United Auto Workers' Ford Rouge Local in Detroit voted
to send a delegate to Richmond. The UAW Plymouth local, the
United Packinghouse Workers Union in Chicago, and the
Furriers Joint Council in New York City followed suit.
Officers of the United Electrical, Radio, and Machine
Workers and the Louisiana Progressive Trade Union Council
sent letters to Governor Battle and President Truman
demanding clemency for the seven. Grossman also authorized
trade unionists to organize "a short work stoppage of, say,
ten minutes" to publicize the plight of the seven.6
The participation of labor, clergy, and civil
libertarians reflected the success of Grossman's efforts to
"establish somewhat broader auspices for this Crusade than
we had last time." Another indication was the number of

257
letters, telegrams, and petitions that reached the
governor's office. D. V. Jemison, a Selma, Alabama,
clergyman who presided over the National Baptist Convention,
appealed to the governor to commute the sentences of the
prisoners in order to promote "good-will in and among the
races." He admitted that "if these Negroes are guilty they
should be punished," but "that punishment should not be
death." Other correspondents were more strident in their
comments, labelling the trials "frame-ups" and "legal
lynchings." Many of the writers illustrated their points
with inaccurate examples drawn from CRC publicity, stating
that the confessions had been "obtained by police
brutality," and the defendants had been charged with two
counts of rape. A petition from a UAW local in Dearborn,
Michigan incorrectly stated that "a lynch atmosphere
surrounded the trials." All of the correspondents
emphasized the pattern of discriminatory sentencing that
characterized the treatment of rape cases in Virginia.7

While the CRC planned its delegation, NAACP attorneys
launched a final legal assault on the death sentences.
After a meeting with Oliver Hill, Spottswood Robinson, and
Thurgood Marshall, Martin A. Martin decided to petition the
federal district court in Richmond for a writ of habeas
corpus. On January 22 he filed a petition that attacked the
constitutionality of Virginia's rape statute. The statute
had been designed to immunize white men from the death

258
penalty, the petition contended, and Virginia courts had
consistently administered the law in a fashion that exacted
"a different and greater punishment" for blacks accused of
rape. Martin included the death penalty statistics for rape
that he had presented to the Hustings Court but he bolstered
them with additional evidence that the state of Virginia had
never executed a white man for assault or attempted assault,
while several black men had been executed when the victims
of the assaults were white females. This pattern of
punishment, the petition argued, violated the egual
protection clause by denying to African-American defendants
"the benefit of that immunity from the death penalty . . .
which to white citizens was secured by Virginia statutes in
force prior to adoption of the 14th Amendment."8

On January 25, five days before the delegation was
scheduled to begin, William Patterson wrote to Governor
Battle to inform him of the impending visit and to reguest
an appointment for that afternoon. Although the event was
organized by the CRC and the Committee to Save the
Martinsville Seven, Patterson took pains to emphasize the
diverse nature of the delegation. Somewhere between two
hundred and five hundred delegates would visit Richmond, he
estimated, "some Negro, some white, some representing
unions, some representing churches, some representing other
types of organizations." Patterson preferred that Battle
meet with the entire delegation, but if that was

259
impracticable he asked that the governor meet with at least
one representative from each state and organization
participating. "Almost every delegate will represent some
different organization, some different social grouping," he
reasoned, "and may have something special to say as to the
thinking and action of his group on this question."9

Patterson's attempts to demonstrate the broad popular
appeal of the delegation did not convince many observers,
who remained skeptical of any movement sponsored by a
leftist organization. An editorial in the Danville Register
remarked, "Just how many of the scum who have changed their
loyalty from Uncle Sam to Uncle Joe the CRC can bring into
Virginia's capital city remains to be seen." The Norfolk
Journal and Guide reported that the delegation "was believed
to have been Communist inspired, with purely political
motives." The national office of the NAACP advised its
local branches not to join the delegation or sign any
petitions. If they sent communications to the Governor,
they should do so as individuals, not in the name of any
group. The NAACP also asked Dr. J. M. Tinsley, president of
the Virginia State Conference, to organize an independent
delegation from Virginia localities. The governor's office,
as if preparing for an enemy assault, doubled the guard
around the state capitol and alerted the state militia to be
prepared should trouble arise.10

260
On Tuesday, January 30, approximately four hundred
demonstrators from more than fifteen states arrived in town.
Most of the delegates were white. Governor Battle agreed to
meet three representatives of the group. At noon Aubrey
Grossman, James L. O'Rourke, a member of the Ford Rouge
local, and Alfred M. Waller, a spokesperson for the Baptist
Ministers Conference of Pittsburgh, met Battle in his
conference room in the capitol . At the beginning of the
meeting Grossman told Battle that "there must have been some
vital moral reason" why so many people would have traveled
so far on behalf of the seven, and he asked the governor to
enlarge the meeting "to give a better cross section of the
point of views represented." Battle agreed to hear four
additional persons — Anne Shore, executive secretary of the
Detroit CRC; Amos Murphy, a white minister from Lawrence,
Massachusetts; L. Cicero Weddington, a black minister from
Gary, Indiana; and Mary Biblo, who represented a "young
people's group" from New York. Two members of the
delegation explicitly distanced themselves from the CRC.
Waller emphasized that his presence was a result Josephine
Grayson's influence, not that of the CRC, while O'Rourke
reminded Battle that his union "certainly couldn't be
considered left wing."11

The spokespersons concentrated on the same issue that
the NAACP had raised in court, the discriminatory
application of the death penalty. In view of the fact that

261
no white man had ever been executed for rape in Virginia,
Murphy argued, "it seems to us the Martinsville seven would
be dying solely because of the color of their skin. We feel
that this would certainly be unchristian and undemocratic."
Battle allowed each delegate to speak freely but his curt
responses to their pleas indicated that he had grown weary
of this troubling controversy and was eager to bring it to
an end. He asked Grossman, "Do you think they can tell me
anything I don't know about this case?" When O'Rourke
criticized the speed of the trials, Battle retorted, "We
don't fool around in Virginia." He became visibly angry
when one of the delegates questioned the victim's morals.
At the close of their appeals, Battle refused to intervene
in the case. The guilt of the prisoners, he told them, was
beyond doubt. The "false propaganda" and "dastardly lies"
that accused the jurors of racial discrimination ignored the
horrible brutality of the crime. "The prisoners had not
been convicted because they are Negroes and should not be
released because they are Negroes." Exhibiting his
characteristic deference to the judiciary, he told the group
that a stay of execution was "up to the courts." If the
demonstrators expected a pardon, he added, "they were
wasting their breath."12

At 2:30 that afternoon Martin Martin and Samuel Tucker
entered the courtroom of Judge Sterling Hutcheson to argue
their clients' case. A native of Mecklenburg County in

262
southside Virginia, the fifty-six-year-old judge had served
for eleven years as U. S. Attorney for the eastern distract
of Virginia before Franklin Roosevelt appointed him to the
bench in 1944. Hutcheson knew Martin from the Hill, Martin,
and Robinson firm's efforts to equalize school facilities in
his jurisdiction and he had ruled in their favor many times.
The benches of the courtroom were filled to capacity and
several hundred delegates who had been denied an audience
with the governor crowded the hallways of the Post Office
building that housed the federal court. Martin argued that
federal intervention was justified because the "variation in
punishment," established by penitentiary records, violated
the defendant's due process and equal protection rights.
Attorney General Lindsay Almond denied the existence of a
state conspiracy to execute blacks and argued that to
mandate uniform standards of punishment without regard to
individual cases would turn Virginia's judges and juries
into "statutory robots." At the close of arguments, around
5:45, Hutcheson refused to issue the writ. He declined to
accept jurisdiction in the case because the issues raised
had been "fully answered by the highest courts of the state
and nation." After "a careful study of all the pertinent
papers," he also addressed the merits of the case. The
Virginia statute, he noted, made no distinctions based on
race and was therefore facially valid. The pattern revealed
by the petitioners' evidence fell within the scope of the

263
discretion of the trial courts. Degrees of punishment, he
asserted, "are to be determined by judges and juries based
on the degree of aggravation of the offense." The
defendants had exhausted their legal remedies in the
appellate courts, Hutcheson concluded, and "there the case
should end."13

Around five o'clock that afternoon, a group of about
thirty people representing the New York Council of Arts,
Sciences, and Professions stepped out of a bus into the
freezing Washington winter to begin a vigil in front of the
White House. The group, led by Shirley Graham, an African-
American author, consisted of several writers, artists,
actors, and intellectuals, including Howard Fast and
Dashiell Hammett. As they picketed the White House, bearing
signs that read "Save the Martinsville Seven" and "Make Your
Civil Rights Bill Come Alive," word reached them that
Governor Battle and Judge Hutcheson had both refused to
intervene. At that point, Graham and Jon Randolph, an
actor, carried to the White House gate a petition that asked
President Truman to invoke federal civil rights legislation
and "the great moral and persuasive power of [his] office"
to reverse the death sentences. "It would look strange
indeed," the petition asserted, "if, while the U. S.
Government offers itself as the protector of civil rights on
a world scale, the state of Virginia, without objection from
the federal government, is allowed to execute seven innocent

264
Negro men." Truman refused to meet any of the picketers and
his secretary instructed them to leave the petition with the
guards.

The following morning, Martin and Tucker began a last-
ditch effort to gain legal relief for their clients. They
drove to Charlottesville to ask Judge Armistead M. Dobie of
the federal Circuit Court of Appeals for the Fourth Circuit
for a certificate of probable cause to appeal Hutcheson's
ruling. Dobie, a seventy-year-old bachelor, had been
appointed to the Court of Appeals in 1939 after teaching at
the University of Virginia Law School for thirty years, the
last seven as dean, and serving less than a year on the
federal district court for the Western District of Virginia.
Dobie declined to issue the probable cause order. He did
not issue a formal opinion, but the loguacious jurist
explained to reporters, "I just decided on the basis of all
the facts, I should not interfere."15

Because any of the judges in the circuit could issue
the order, Martin and Tucker immediately drove to Charlotte,
North Carolina, to present their case to Chief Judge John J.
Parker. Four years younger than Dobie, Parker had been
appointed to the court in 1925 by Calvin Coolidge as a
reward for his staunch support of the Republican party in
North Carolina. In 1930 Herbert Hoover nominated him for a
vacancy on the Supreme Court but the Senate rejected him
after the NAACP and other groups revealed that he had run on

265
an antiblack and antilabor platform during the 1920 North
Carolina gubernatorial election. On February 1 at 10:00 A.
M. , Martin presented a petition almost identical to the one
that had been rejected by Hutcheson and Dobie. Lindsay
Almond and his assistant, Henry T. Wickham, also appeared to
oppose the petition. At the end of the hearing Parker found
"no merit in the contention" that racial discrimination had
influenced the juries' sentencing. He noted that the
"exhaustive and able opinion" of the Virginia Supreme Court
of appeals had "found that every aspect of the trial in the
court below was consonant with the principles of due
process." No subseguent court had seen fit to guestion that
ruling. Because the defendants had received a full hearing
in state and federal courts, Parker refused to "stay the
hands of the sovereign state of Virginia."16

As it became apparent that the federal judiciary would
not intervene in the cases, the CRC and the Committee to
Save the Martinsville Seven stepped up their efforts to
convince the governor that justice would best be served by
commuting the death sentences. Around 6:00 P.M. on January
31 the CRC initiated a vigil in Richmond's capitol sguare to
engage in prayer from dawn to midnight every day until the
men had been saved or executed. Aubrey Grossman also
encouraged ministers across the nation to organize local
prayer vigils. Shifts of volunteers maintained the vigil by
chanting, singing hymns, and reading from the Bible, often

266
huddling under umbrellas or crowding around oil-drum fires
to escape the chilling rain showers and dense fog that
surrounded them. The Richmond police prohibited more than
four people at a time from staffing the demonstration, but
on the morning of the first execution at least seventy-five
people swelled its ranks.17

Grossman also sent volunteers into the streets and to
the telephones to build support for the men. Teams of three
or four people distributed leaflets in front of shopping
centers and by the factory gates of the cigarette
manufacturers. Others dialed numbers from the local
telephone book at random and asked anyone who answered to
call or to write the governor. As a result of these and
other national publicity campaigns thousands of letters,
telegrams, and petitions flooded the governor's office.
Again, some of the correspondence reflected the sentiment
that, the guilt of the defendants notwithstanding, the
evidence of discrimination unearthed by the NAACP merited a
reduction in their sentences. Many more of the letters,
however, demanded a pardon for the seven, echoing the
charges of "legal lynching" and "Jim Crow frame-up" that the
CRC had emphasized from the beginning.18

The impending executions also received attention beyond
Richmond. The Nation and New Republic featured stories and
editorials criticizing "Virginia's Black Justice." Harry
Byrd, leader of Virginia's Democratic party machine, refused

267
to see picketers at his Senate office in Washington. The
American Communist party asked Eleanor Roosevelt to help
stop the executions. Robert M. Lovett, a former government
official in the Virgin Islands, suggested to Nobel prize
winner and civil rights activist Ralph Bunche that he attend
to "this life and death issue which has great national and
international implications." Demonstrations also occurred
in many major cities. On the eve of the executions, for
instance, six street corners along Lenox Avenue in Harlem
featured picketers carrying signs and distributing
leaflets.19

Protestors also focused their efforts on the president
of the United States. In the week leading up to the
executions President Truman received almost a hundred cards
and letters urging clemency for the Martinsville Seven. The
following week almost 2000 telegrams arrived. Picketers
from the Council of Arts, Sciences, and Professions also
continued to brave snow flurries and below freezing
temperatures to maintain the "death watch" in front of the
White House. As the weather worsened and some picketers
left to demonstrate in Richmond the protest dwindled to
eight people but reinforcements soon arrived from New York.
On February 1, a delegation led by Mary Church Terrell, an
eighty-year-old veteran of the civil rights struggle,
attempted to meet with Truman. Phileo Nash, Truman's
administrative assistant, informed the group that while the

268
president was "very familiar" with the Martinsville Seven
case, "he was not seeing anybody about the case." If they
had any new evidence, he added, they should contact the
justice department. In a letter to Eleanor Roosevelt
written the following day, J. Howard McGrath, the attorney
general, explained that the president could not intervene
because he had no clemency authority over state convictions
and "it has not appeared that the violation of any Federal
law has occurred."20

In addition, the case received considerable
international attention. Although foreigners had expressed
their concern to Truman and Battle since the previous July,
the foreign correspondence increased markedly as the
executions approached and the sentencing disparity figures
received greater publicity. Letters from Poland and Romania
demanded the prisoners' immediate release. A telegram from
Moscow, signed by "workers in science, literature and the
arts," including Dimitri Shostakovich and Sergei Prokofiev,
expressed "deepest indignation at this act of infamy and
brutality inspired by race hatred" and urged "all honest men
and women to speak up in defense of the innocent youths and
save them from the electric chair." A notice from Peking
was even more harsh, calling the "barbaric sentence . . .
further evidence of [the] type of so-called law and order
now prevalent in America which offers protection only to

269
extreme racial hatred, fascist hooliganism, and war-
mongering. "21

Citizens of some of the United States' closest allies
also questioned the death sentences. Letters from Israel
and West Germany demanded that Governor Battle act
immediately. Sixty-two deputies of the French Assembly
asked Truman to intervene. The World Federation of
Democratic Youth erected billboards in Paris. In several
French cities another organization hung large posters that
reminded "French anti-racists" of their "duty of protesting
the U. S. authorities." Many protests originated from Great
Britain. A petition from "the coloured people in London"
demanded that Battle repudiate the death sentences.
Semahala Mulumbra, head of Uganda's exiled Bataka party,
told British Prime Minister Clement Atlee, "Africans are
anxiously watching to see what you will do to help save
innocent Martinsville Negro lads condemned to execution."
The American Embassy in London also received several
inquiries about the executions and monitored the left-wing
press for criticisms of the United States arising from
interest in the case. Embassy personnel also noticed that
many "non-Communists" had expressed concern for the seven
and they asked that the State Department supply "the real
facts" so that they could "answer properly" queries about

270
On the evening of February 1, as Martin and Tucker
drove to Washington to seek Supreme Court intervention,
Oliver Hill and Spottswood Robinson met with John Battle to
seek a commutation or a stay of execution. Following the
meeting, Battle announced that he would grant no further
stays because "every possible opportunity has been afforded
for the presentation to the highest court in the land of
every phase of these cases." He recognized that "some very
sincere and honorable people" had taken an interest in the
cases and he assured them that he had given their requests
for executive clemency "the best consideration of which I am
capable." However, he complained, the propaganda emanating
from the Daily Worker and the "so-called" Civil Rights
Congress bore "no semblance of truth and [was] designed for
no other purpose than to attempt to foment ill feeling
between the races and to mislead those who have no knowledge
of the true facts of these cases." At the time, he denied
that the "slanderous statements" had any bearing on his
decision, but he later admitted that at least two of the
younger men probably deserved commutations to life
imprisonment. The emphasis on the seven as a unit made
special exceptions for individuals difficult, however,
because "they were as guilty as the rest." In addition,
Battle had to avoid the appearance that radical protest had
swayed him. Finally, as always, Battle hesitated to
overrule the decisions of the courts. "I've slept with a

271
clear conscience," he told an interviewer in 1967. "The law
had spoken."23

Later that night several clergymen made a final effort
to save the men. The Reverend Robert S. Anderson, spiritual
advisor to John Taylor, sent a telegram to Battle contending
that two of the prisoners, Frank Hairston and DeSales
Grayson, were protesting their innocence, claiming they had
never touched the woman. Anderson asked the governor to
authorize lie detector tests but Battle refused, reportedly
because the blood pressure of men facing execution would
render the tests inaccurate. A delegation of ministers
sought to see the governor personally to make the same
reguest but had to settle for delivering a written statement
to his secretary.24

Shortly after midnight on February 2, Martin, Tucker,
and another NAACP attorney, Frank Reeves, met in Chief
Justice Fred M. Vinson's hotel room to argue for a stay of
execution. After discussing the case for more than an hour,
Vinson rejected the plea because the Supreme Court had
already twice refused to review the case. Barely six hours
before the executions were to begin, the attorneys reported
that the NAACP had exhausted all legal avenues without
success and "knew of no further possible action that could
be taken."25

For the most part the seven men confined to death row
in the Virginia State Penitentiary were unaware of the last-

272
minute efforts being made on their behalf. During their
nineteen months of incarceration the prisoners1 chief
contacts with the outside world had been the clergymen who
acted their spiritual advisors. Family members saw them on
holidays but the cost and distance of the trip precluded
more than occasional visits. The clerical influence on the
men was considerable. Only DeSales Grayson, a Roman
Catholic, had professed any religion before the trials, but
under the guidance of the ministers the rest of the men were
baptized in prison. In addition to a daily prayer service
the men occupied themselves by answering the many letters
that they received, most of them from CRC members and some
from foreign countries. Joe Henry Hampton asked the
Colorado State Civil Rights Congress to write them
regularly, and Booker T. Millner encouraged the Committee to
Save the Martinsville Seven to write to their parents.
James Hairston told a Chicago woman that he appreciated her
comparison of his plight to that of the Scottsboro boys.
Grayson also heard periodically from William Patterson, who
assured him that "we will not desert you" in the "fight for
your freedom and the freedom of the other young men who are
there behind bars with you."26

Shortly after midnight, February 2, Joe Henry Hampton,
Howard Lee Hairston, Booker T. Millner, and Frank Hairston,
Jr. , said good-bye to their families and ate their last
meals. According to the clergymen who were with them, the

273
prisoners spent their last hours singing, praying, and
talking to one another. They remained, said the ministers,
"calm, composed, and in high spirits to the last minute."
At approximately 7:30 A.M., prison guards led George Hailey,
a white man convicted of raping and murdering a twelve-year-
old girl, to the electric chair. About thirty minutes
later, the guards returned for Hampton.

The execution chamber, like death row, was housed in
the basement of Building "A" of the penitentiary.
Constructed in 1905, Building "A" was the only structure to
survive the renovation of the prison in 1928. The electric
chair had been installed in 1908 when the General Assembly
ordered the penitentiary to assume responsibility for
executions from the local jurisdictions. The chair sat
alone in the middle of one of the pastel green walls in the
room, which measured about twenty-four feet sguare. As
guards attached electrodes to Hampton's head and left ankle,
twelve witnesses, eight of them from Martinsville, took
their places in a row of chairs at the opposite end of the
room. Hampton offered prayers as the guards strapped him
down; the others would do the same when their turns came.
The executioner pulled a switch that sent 2800 volts of
electricity through Hampton's body. At 8:12 the prison
doctor pronounced him dead.27

The other men followed "in an orderly manner, according
to Superintendent Frank Smyth. While Howard Hairston was

274
being executed, Millner reached through the bars of his
cell, held Frank Hairston's hand and asked God to "forgive
the men who are doing this to us." Howard died at 8:32 and
Millner died seventeen minutes later. As the captain of the
guard led Frank Hairston to the chair, the Richmond Afro-
American reported, Hairston shook hands with the officer,
who told him, "Frank, you have been a model prisoner." Once
fastened to the chair, he looked at the witnesses and told
them, "Gentlemen, I want you all to meet me in Heaven." The
first jolt of electricity failed to kill him and Smyth
ordered the executioner to pull the switch again. At 9:05
the doctor removed his stethoscope from Hairston's chest and
pronounced him dead. In less than two hours five bodies had
accumulated on stretchers that lined the walls of the
execution chamber, the largest number of men executed in one
day by the state since 1908. 2&

Although no protest took place on the prison grounds,
the vigil of prayer continued at Richmond's capitol sguare.
The CRC and the Committee to Save the Martinsville Seven,
claiming that this case made "the murder of Sacco and
Vanzetti seem a trivial act of irresponsible officials,"
called on several persons of authority to intervene. In New
York, a delegation at the United Nations sought intervention
from the Commission of Human Rights while a crowd of 2500
people assembled in Harlem to protest the executions that
occurred that morning. Many of these people later met at

275
City Hall to persuade Mayor Vincent Impelliterri to force
Governor Battle "to stop this mass blood-shed." One hundred
Chicagoans called on Illinois Senator Paul Douglas, one of
Truman's staunchest supporters, to demand the president's
intervention. In Richmond, volunteers distributed handbills
and black armbands, while theatre and store owners, some of
them white, urged their customers to call the governor.
Some restauranteurs closed their doors to deliver coffee and
food to the freezing demonstrators. On Sunday, February 4,
218 people marched down Broad Street, Richmond's main
thoroughfare, to join the vigil.29

Protestors also continued the letter and telegram
campaign to the governor and long-distance telephone calls
tied up the switchboard at the executive office for hours.
Battle refused to accept phone messages, and Western Union
briefly halted delivering telegrams to the governor. Mail
continued to pour into the governor's office, the most
strident of which informed him that "you white sons of
bitches will suffer for crucifying these innocent boys. . .
. Soon the glorious Negro race will revolt and rule in your
place and you will be strung up from the Courthouse flagpole
and your carkass [sic] thrown to the dogs. YOU MUST DIE!! I"
Battle denounced the bulk of the messages as communist
propaganda and refused to hear any more misguided pleas,
leading one man to accuse him of "legalized murder by
absenteeism. "30

276
In Washington, CRC officials planned a mass
demonstration to begin on Sunday with a "big memorial
meeting" at the Vermont Avenue Baptist Church and culminate
with a procession in which four coffins would be carried to
the White House. However, church officials cancelled the
meeting after they learned that William Patterson would be
one of the speakers. "The church belongs to the people,"
the Reverend C. T. Murray explained, "and I just cannot have
organizations that are on the subversive list using its
facilities." Instead, between one hundred and three hundred
demonstrators marched in a circle in front of the White
House. District of Columbia police chief Robert Barrett
called the picket line the longest he had seen and called a
hundred extra policemen to "be on the alert." The group
included Josephine Grayson and her five children, who tried
unsuccessfully to see President Truman and Vice president
Alben Barkley.31

Later that evening Martin Martin permitted Aubrey
Grossman to make a plea for a stay of execution to U. S.
Supreme Court Justice Harold Burton. Martin allowed
Grossman the use of the NAACP ' s legal records but he
emphasized that he was "not associated with Grossman's
organization." At nine o'clock that night, Grossman and two
Washington attorneys who occasionally represented CRC
clients, Belford Lawson and Joseph Forer, met Justice Burton
in his chambers. As in the previous appeals the attorneys

277
argued that Virginia's pattern of death penalty sentencing
for rape violated the equal protection clause, but they made
two additional arguments. First, they contended that the
defendants had been denied their Sixth Amendment right to
effective assistance of counsel because "any white lawyer .
. . who represented the petitioners vigorously" would
"become an object of hatred in the white community thereby
incurring serious consequences to his practice and his
social life." In fact, they complained, "the defense of the
petitioners by the appointed counsel was apathetic."
Second, the lawyers argued that the death sentences
constituted cruel and unusual punishment in violation of the
Eighth Amendment. This argument was probably inspired by
Burton's vigorous dissent three years earlier in Louisiana
ex rel. Francis v. Resweber, a case involving a botched
execution attempt, in which he argued that the cruel and
unusual punishment clause applied to the states. In this
case, however, Burton reverted to his traditional deference
to jury discretion and his reluctance to interfere in state
criminal proceedings. Burton therefore declined to stay the
executions because there was no evidence that the juries or
the attorneys had acted improperly.32

Early in the morning of Monday, February 5, John Clabon
Taylor, James Luther Hairston, and Francis DeSales Grayson
ate their last meals and silently waited in their cells,
listening to the radio. Extra guards were posted outside

278
the prison to counter any protests but the only observers
staring through the prison gates were twenty men who hoped
to take the place of any witnesses who failed to appear. At
half past seven the prisoners marched to the green chamber,
and at 7:41 the prison doctor pronounced Taylor dead. The
executions proceeded for the most part "with calm
efficiency," although the Afro-American reported that the
last two prisoners presented some difficulties. Hairston
had to be electrocuted twice before he died at 8:00, and
Grayson protested that he was innocent until he died fifteen
minutes after Hairston. As news of the executions reached
the lawn of the capitol , the vigil of prayer disbanded and
the demonstrators, many who had been away from their homes
for almost a week, returned home. Only one task remained,
and that would be completed as soon as the hearses backing
out of the penitentiary driveway reached their destinations.
Millner and Hampton had already been buried the previous day
in Patrick and Pittsylvania Counties, respectively. The
funeral of Frank Hairston had just ended when the bodies of
John Taylor and James Hairston arrived at the Allen Funeral
Home in Martinsville. Hairston was buried on Tuesday,
February 6, with his half-brother, Howard, but Taylor's
funeral was delayed until Thursday because of cold weather.
On Friday, services were held for Grayson, the only man with
no family ties in Martinsville, in St. Joseph's Catholic
Church in Richmond. After two years, five stays of

279
execution, and sixteen judicial actions, the legal odyssey
of the Martinsville Seven had ended.33

Notes

1. Richmond Afro-American, 3 February 1951, p. 1.

2- Daily Worker. 2 January 1951, p. 2, and 12 January 1951,
p. 2; Chapter Bulletin, 8 January 1951, File jl9, Box 40, CRC
Papers; Patterson to "Dear Reverend," 8 January 1951, and
Memorandum, Aubrey Grossman to Chapter Secretaries, 9 January
1951, both in File a229, Box 11, CRC Papers.

3. Gerald Home, Communist Front? The Civil Rights Congress,
1946-1956 (Rutherford, N.J., 1988), 32; Grossman to Chapter
Secretaries, 9 January 1951, File a229, Box 11, CRC Papers;
"The Case of the Martinsville Seven — Fact Sheet," 11 January
1951, File a227, Box 11, CRC Papers; Chapter Bulletin, 22
January 1951, File jl9, Box 40, CRC Papers.

4. Grossman to Josephine Grayson, 15 December 1950, File
a229, Box 11, CRC Papers; Form Letter from Grossman, 16
december 1950, File a227, Box 11, CRC Papers; Grossman to
Lester Davis, executive secretary of the Chicago CRC, 7
January 1951, and Davis to Grossman, 10 January 1951, both in
File p63, Box 80, CRC Papers; Flyer, "Seven Martinsville
Negroes Railroaded!," n.d., Box 115, Battle Papers; Daily
Worker, 18 January 1951, p. 2.

5. Press Release, 29 January 1951, File a233, Box 11, CRC
Papers; Alma Foley to Civil Rights Congress, 12 January 1951,
File pllO, Box 83, CRC Papers; Katherine [Hyndman] to
Grossman, 14 January 1951, File p74, Box 81, CRC Papers; Yetta
Land to Civil Rights Congress, 23 January 1951, File p2 , Box
77, CRC Papers; Daily Worker, 29 January 1951, p. 1.

6. Daily Worker. 12 January 1951, p. 2; 17 January 1951, p.
3; 22 January 1951, pp. 1, 8; 25 January 1951, p. 2; and 29
January 1951, p. 1; Chapter Bulletin, 22 January 1951, File
J19, Box 40, CRC Papers.

7. Memorandum, Grossman to Chapter Secretaries, 9 January
1951, File a229, Box 11, CRC Papers; Jemison to Patterson
[copy of letter to Battle], 15 January 1951, File a233, Box
11, CRC Papers; Walker to Battle, 3 0 January 1951, copy in Box
77, Harold Burton Papers; Petition, "Must They Die?," n.d.;
Petition, "Free the Martinsville Seven," n.d.; "Emergency

280

Petition to Save the Martinsville Seven," n.d. ; Harlin Talbert
to Battle, 26 January 1951, all in Box 115, Battle Papers.

8. Norfolk Journal and Guide, 6 January 1951, p. 1, and 27
January 1951 (Virginia ed.)/ P- 1; Richmond Afro-American. 27
January 1951, p. 1.

9. Patterson to Battle, 2 5 January 1951, Box 11, Battle
Papers.

10. Danville Register, 26 January 1951, p. 6; Norfolk Journal
and Guide (Virginia ed.), 3 February 1951, p. 2; Roy Wilkins
to Thurgood Marshall, 26 January 1951, Box 3, Wilkins Papers;
Memorandum, Gloster Current to NAACP Branch Officers, 3 0
January 1951, Box A361, General Office Files, NAACP Papers;
Richmond Afro-American, 3 February 1951.

11. Martinsville Bulletin, 30 January 1951, p. 1; Richmond
Afro-American. 3 February 1951; William Patterson to Clyde 0.
Jackson, 31 January 1951, File m36, Box 58, CRC Papers

12. Martinsville Bulletin, 30 January 1951, p. 1; Norfolk
Virginian-Pilot . 1 February 1951, p. 6; Daily Worker. 31
January 1951, p. 1; Peter Ros Henriques, "John S. Battle and
Virginia Politics: 1948-1953" (Ph.D. diss., University of
Virginia, 1971), 181-82.

13. Norfolk Journal and Guide (Virginia ed.), 3 February
1951, p. 2; Richmond Afro-American, 3 February 1951, p. 1.
On Sterling Hutcheson see J. W. Peltason, Fifty-Eight Lonely
Men: Southern Federal Judges and School Desegregation (New
York, 1961), 212-13; and Richard Kluger, Simple Justice (New
York, 1976) , 486-87.

14. Daily Worker, 29 January 1951, p. 1; 30 January 1951, p.
1; and 31 January 1951, p. 1; Norfolk Journal and Guide
(Virginia ed.), 3 February 1951, p. 2.

15. Richmond Afro-American, 3 February 19 51, p. 1; Richmond
Times-Dispatch, 1 February 1951, p. 1; Kluger, 485-86; W.
Hamilton Bryson, ed., Legal Education in Virginia, 1779-1797:
A Biographical Approach (Charlottesville, 1982), 197-202.

16. Summary of Parker's Ruling, n.d., Box 115, Battle Papers;
Richmond Times-Dispatch, 1 February 19 51, p. 1; Richmond News
Leader, 1 February 1951, p. 1; Peltason, 22-23; Kluger, 141-
44.

17. Richmond Times-Dispatch, 1 February 1951, p. 1; 2
February 1951, p. 1; and 3 February 1951, p. 1; Richmond News
Leader, 2 February 1951, p. 1; William Mandel , "Vigil in
Richmond," Jewish Life, April 1951, 7.

281

18. Mandel, 6; Richmond Times-Dispatch, 2 February 1951, p.
1; Richmond News Leader, 1 February 1951, p. 6.

19. Marvin Caplan, "Virginia's Black Justice," New Republic,
29 January 1951, 17; "The Shape of Things," The Nation, 27
January 1951, 71; Richmond Times-Dispatch , 2 February 1951,
p. 1; Daily Worker, 2 February 1951, p. 3.

20. Mail Log for the Week Ending 2 February 1951, Official
File, Truman Papers; Attorney General to Eleanor Roosevelt,
2 February 19 51, copy in Phileo Nash Files, Harry S. Truman
Library; Press Release, "Virginia Execution of Four of
'Martinsville Seven' Negroes Shocks World," File a233, Box 11,
CRC Papers; Richmond Times-Dispatch , 1 February 1951, p. 2;
Daily Worker, 2 February 1951, p. 1.

21. Telegram, Soviet Workers to Battle, 31 January 1951,
Battle Papers; Richmond News Leader, 1 February 1951, p. 6:
Richmond Times-Dispatch, 1 February 1951, p. 1.

22. Daily Worker, 18 January 1951, p. 8; Richmond News
Leader, 1 February 1951, p. 6; Petition, postmarked 15 January
1951, Box 115, Battle Papers; Chapter Bulletin, 29 January
1951, p. 2, File jl9, Box 40, CRC Papers; Press Release, "West
German, French Youth, East Africans, Protest Martinsville
Seven Death Sentences," n.d., File a233, Box 11, CRC Papers;
Telegram, American Embassy, London, to Department of State,
24 January 1951; Telegram to Secretary of state, 1 February
1951; and Telegram, American Embassy, London, to Department
of State, 27 February 1951, all in File 350.21 Communism,
Records of the Foreign Service Posts of the Department of
State, Record Group 84, Washington National Records Center,
Suitland, Maryland.

23. Statement by Governor Battle, 1 February 1951, p. 2, Box
115, Battle Papers; Henrigues, 185-86; Virginius Dabney,
Virginia; The New Dominion (Charlottesville, 1971), 527.

24. Richmond Afro-American, 10 February 1951, p. 1.

25. Norfolk Journal and Guide, 10 February 1951, p. 2;
Richmond Times-Dispatch , 2 February 1951, p. 1.

26. Richmond Afro-American, 29 July 1950, p. 6; 9 December
1950, p. 20; and 10 February 1951, p. 1; Daily Worker, 14 July
1950, p. 5, and 8 November 1950, p. 9; Booker T. Millner to
John Battle, n.d.; Frank Hairston to Battle, n.d.; Hampton to
Battle, 21 June 1950; and Grayson to Battle, 24 June 1950, Box
115, Battle Papers; Press Release, "Xmas Greetings from France
Pour in to 'Martinsville 7,'" 18 December 1950, File a233, Box
11, CRC Papers; Nancy [Kleinbord] to Aubrey Grossman, 6

282

January 1951, File p42, Box 46, CRC Papers; Patterson to
Grayson, 2 January 1951, File a227, Box 11, CRC Papers.

27. Richmond News Leader. 2 February 1951, pp. 1, 6; Richmond
Afro-American, 10 February 1951, p. 1; Paul W. Keve, The
History of Corrections in Virginia (Charlottesville, 1986) ,
118, 147-48, 180-81.

28. Richmond News Leader, 2 February 1951, pp. 1, 6; Richmond
Afro-American , 10 February 1951, p. 1; Mandel, 5.

29. Mandel, 8; Richmond Times-Dispatch, 5 February 1951, p.
1; "Statement: The Virginia Execution of Four of the
Martinsville Seven," 2 February 1951; "An Appeal to the Mayor
of New york," 2 February 1951; Press Release, "Richmond People
Out in Front in Martinsville Defense Campaign," 10 February
1951, all in File a233, Box 11, CRC Papers.

30. Richmond Times-Dispatch . 3 February 1951, p. 1; Booker
Carver Washington, III, to Battle, 5 February 1951, Box 115,
Battle Papers.

31. Richmond Afro-American. 10 February 1951, p. 12; Richmond
Times-Dispatch . 4 February 1951, p. 1, and 5 February 1951,
p. 1; Daily Worker. 5 February 1951, p. 1.

32. Petition for a Writ of Habeas Corpus, Grayson et al. v.
Smyth . Box 77, Burton Papers; Diary of Harold Burton, 4
February 1951, microfilm reel 3, Burton Papers; Louisiana ex
rel. Francis v. Resweber, 329 U.S. 452 (1947); Mary Frances
Berry, Stability, Security, and Continuity: Mr. Justice Burton
and Decision-Making in the Supreme Court, 1945-1958 (Westport,
Conn., 1978), 59-66, 145-46; Ronald G. Marquardt, "The
Judicial Justice: Mr. Justice Burton and the Supreme Court"
(Ph.D. diss., University of Missouri, 1973), 156-60, 173-74,
260-61.

33. Richmond Times-Dispatch, 6 February 1951, p. 1; Richmond
News Leader, 5 February 1951, p. 1; Richmond Afro-American,
10 February 1951, p. 1, and 17 February 1951, p. 1; Norfolk
Journal and Guide, 10 February 1951, p. 1; Martinsville
Bulletin. 6 February 1951, p. 1.

CHAPTER 9
CONCLUSION

The memory of the Martinsville Seven quickly faded from
the minds of most Americans, but for a brief period in the
1950s their experience provided a rallying cry for radicals
and civil rights activists. The leaders of the Virginia
State Conference proclaimed that "the indefensible tragic
result of the Martinsville case will . . . strengthen the
determination of the NAACP to continue its fight for equal
and exact justice for all under our Constitution." William
Patterson and Aubrey Grossman recruited Josephine Grayson to
join the Civil Rights Congress's campaign against the
executions of Willie McGee and other black defendants. The
CRC cited the case eight times in its petition to the United
Nations charging the federal and state governments with
genocide. As late as 1969 many black voters opposed William
C. Battle's gubernatorial bid because of his father's
refusal to grant clemency. Most important, the
circumstances surrounding the case revealed much about the
administration of justice in the South after World War II
and the manner in which political and social concerns shaped
legal procedure.1

283

284
On the local level, the case reflected the Martinsville
community's attitudes toward race and crime. The rape of a
white woman by seven black men unquestionably stirred the
racial tensions of a community rooted in the tradition of
white supremacy. Yet racial prejudice explained only in
part the harsh penalties assessed against the defendants.
Most citizens of Martinsville, black and white, testified
that the rape of Ruby Floyd had disturbed the positive
relations that existed between the races. Local residents
believed that the assault on Mrs. Floyd threatened the
safety of the town's white citizens, particularly women, and
undermined the stability of relations with the black
community. Swift action against the offenders, conservative
white Virginians believed, would restore the previously
harmonious, if unequal, social order.2

Contrary to the stereotypical images of racist lynch
mobs avenging the honor of Southern white womanhood,
however, local officials took care to maintain procedural
regularity. Law enforcement officials used modern
investigative techniques, defense attorneys provided at
least adequate counsel, and Judge Whittle warned the lawyers
to keep racial issues out of his courtroom. No lynch mobs
demanded immediate justice nor did large crowds even
assemble at the Henry County Courthouse during the trials.
These actions illustrated Virginia's traditional reliance on
the legal system to enforce racial values. Between 1908 and

285
1951 North Carolina was the only Southern state with fewer
reported lynchings of blacks than Virginia. Only one
reported lynching occurred in Virginia after 1930 and none
after the General Assembly passed an anti-lynching statute
in 1936. During the same period, only three states — Texas,
North Carolina, and Georgia — executed more blacks for rape
than Virginia. Virginia prosecutors knew how to enforce the
existing racial order within the constraints of new
procedural guidelines, eliminating the need for mob
violence.3

Oliver Hill cynically described the reasoning behind
this process. "We don't need to lynch the niggers," white
Virginians believed. "We can try them and then hang them."
The process actually operated more subtly, however,
emphasizing criminal control as much as racial control. The
goal of the local police, prosecutors, judges, and jurors,
evident in the swift apprehension of the suspects and the
rapid succession of the trials, was to secure a conviction
of the guilty parties as guickly as possible to restore
community stability. Each refusal by a higher court to
overturn the convictions confirmed the guilt of the seven
and vindicated the operation of the local judicial process.
Ironically, the adherence of the Martinsville legal
establishment to due process guarantees, many of them
intended to protect African-Americans from the prejudice of
local juries, fortified the power of the Martinsville juries

286
to punish the defendants in accordance with community
standards. Racial attitudes figured into the sentencing
equation, but the juries also evidenced a concern for public
safety and community stability. As an editorial in the
Louisville Times explained, "Justice is done where justice
to criminals is justice to all good citizens."4

Similarly, the NAACP's attack on the racial basis of
capital sentencing also implicated the legal values of
Virginia society. Because of the Martinsville court's
attention to due process requirements the NAACP was forced
to develop equal protection arguments that challenged the
racial disparity of death sentences for rape. This call for
the equal treatment of all defendants, however, invoked
constitutional values that ran counter to state officials'
conception of proper procedure, in which adherence to
minimal due process protections guaranteed the state wide
latitude to control crime. By invoking broad equal
protection and due process principles, the NAACP not only
challenged the racial values of the Martinsville community,
but, just as important, it scrutinized the legal principles
that sanctioned the practice of racial control.

The participation of the CRC also influenced the
outcome of the case because the fear of suspected Communist
organizations, fueled by the cold war with the Soviet Union,
exacerbated the desire for domestic security and community
stability. Most blacks and whites at the time agreed on at

287
least one point — groups like the CRC aided criminal
defendants only in cases that served the party's immediate
interests. To the Richmond Times-Dispatch, the "malicious
and willful distortions" of the facts by the CRC provided "a
perfect illustration of the manner in which Communists
operate." Time magazine criticized the "well-greased
Communist apparatus" that was "making propaganda hay out of
the Martinsville Seven — with suitable adjustments in the
facts." The delegation to Richmond, according to the
Roanoke World News, represented "the rankest sort of Red
propaganda." The efforts to make martyrs of the seven,
declared the Danville Register, comprised one small part "of
the Red campaign to divide the only powerful foe facing the
Kremlin." After the executions, the Richmond Afro-American
reported that most of Martinsville's black community
believed the men would have been awarded clemency if not for
the marches on Richmond and Washington. The newspaper also
concluded that "the only victor in the whole sordid business
of the Martinsville Seven was Russian propaganda."5

These assessments of the CRC underestimated the
organization's depth of concern for the Martinsville Seven.
Throughout the prisoners' incarceration William Patterson
kept the men abreast of efforts on their behalf. After the
executions he consoled their relatives. With the assistance
of churches in New York City the CRC secured employment and
housing for Josephine Grayson and her five children.

288
Nevertheless, certain actions by the CRC reinforced the
impression that the CRC only took an interest in the case
for its propaganda value. The evident guilt of the
defendants led the CRC to fabricate stories of their
innocence, confirming to many observers the lengths to which
Communists would go to discredit the American system. It
routinely used fund-raising meetings for the seven to
introduce churches and labor unions to the party platform
and to publicize the plight of Communist defendants being
tried for subversion in federal courts. "One cannot
separate the execution of these seven Negroes from the
conviction of the eleven Communist leaders through an
indictment drawn from the Smith Act," wrote CRC celebrity
Howard Fast. Some of the money raised on behalf of the
seven was diverted to support the CRC ■ s other causes, a
tactic that bothered even some local CRC branches. The
executive secretary of the Civil Rights Congress of
Illinois, for instance, sarcastically asked Aubrey Grossman
what he should do with money left over from a meeting
attended by Josephine Grayson, "other than contributing it
to your office." The CRC ' s concern for the defendants,
therefore, was balanced by the potential for publicity and
membership that a case like the Martinsville affair could
provide.6

In a similar fashion, the NAACP ■ s interest in the case
extended beyond the welfare of its clients in an effort to

289
link civil rights for African-Americans to the cold war
liberal agenda. Beginning in the late 1940s many civil
rights activists argued that the most effective way to
promote worldwide democracy and counter Soviet criticism was
to guarantee racial equality at home. Walter White,
executive secretary of the NAACP, complained that "the
Martinsville Seven case has already proved to be as generous
a gift to Communist propaganda as could be devised." He
urged Governor Battle to grant executive clemency "not only
as an act of mercy, but also in the interest of national
security." The Southern equation of communism and civil
rights activism, however, rendered mercy and security
incompatible, especially after the NAACP began challenging
the core values of the criminal justice system in a manner
similar to radical attacks. Battle especially, but also
some jurists, such as Judge Doubles, clearly expressed their
desire not to appear to be influenced by subversive
organizations. "The chances for executive clemency would
have been better," concluded the Norfolk Journal and Guide,
"if the national and international crusade had not
occurred. "7

In addition to the intransigence of Southern racial and
legal traditions and the interference of suspected radical
organizations, the internal policies of the NAACP weakened
the defense effort. At the conclusion of the case J. M.
Tinsley, president of the Virginia State Conference, and

290
Lester Banks, the conference's executive secretary,
complained that "the attitude of the National office has
been first hot and then cold." Local branches outside of
Virginia could not engage in any publicity or fund-raising
activity because they received no direction from New York.
The Civil Rights Congress "did a mammoth job of arousing the
people," Tinsley continued, "all of which could have and
should have been done by the NAACP." Had the national
office acted more forcefully, "it would not now find itself
in the embarrassing position of having to explain and inform
its branches as to the NAACP ■ s connection with the case."
Tucker and Banks also complained that the national office
had not provided any monetary assistance to defray the
$4,000 debt incurred in the case, which made it difficult
for the conference to pursue its transportation and school
desegregation cases. As a result, the executive committee
of the NAACP* s Legal Defense Fund voted to contribute $1,500
toward the Virginia State Conference's debt. At a February
meeting of the NAACP" s board of directors, the members
agreed that the NAACP should enter rape cases as early as
possible "without waiting to take up the matter of expenses
or anything else." Some of them also speculated that
"perhaps because it was felt that these men were guilty, the
Board lost sight of the larger problem. The issue was not
whether the men were guilty of rape but whether a Negro
should die for rape when no white man dies for it."8

291
The revelation of capital sentencing disparity in
Virginia was one of the most significant contributions of
the Martinsville case. The Christian Century recommended
the abolition of the death penalty because the "striking
difference in the punishment inflicted on members of the two
races will certainly be used by Communist propaganda around
the globe." Even people who did not oppose the death
penalty expressed shock at the ineguality of sentences.9
The findings also found their way into other courtrooms.
After the executions, attorneys from around the country
sought advice from the Hill, Martin, and Robinson firm on
collecting, organizing and presenting data related to
executions. Martin shared his files with Ralph Powe, an
attorney for the CRC, who utilized similar studies in the
Willie McGee case in Mississippi and the Ocie Jugger-Paul
Washington case in Louisiana. Frank Donner, counsel for the
CIO, publicized Martin and Tucker's findings in his Civil
Liberties Reporter. Attorneys continued to raise the
disparity argument in Virginia courts, albeit
unsuccessfully, throughout the 1960s. In fact, the egual
protection argument, based on empirical evidence of
sentencing patterns, became the most common attack on the
death penalty until lawyers from the NAACP Legal Defense
Fund began exploring Eighth Amendment arguments in the late
1960s.10

292

Perhaps more important, the Martinsville case
represented an attempt to link the NAACP's criminal
litigation efforts to the more conventional aspects of the
civil rights movement, such as the desegregation of schools,
transportation, and public facilities. The attorneys for
the seven decided against using arguments based on the
Eighth Amendment because, Roland Ealey explained, they
wanted to emphasize equal protection and due process, "the
bedrock of legal rights." At the same time that Martin
Martin was developing his broad attack on the application of
the death penalty, his partners, Oliver Hill and Spottswood
Robinson, were abandoning the traditional desegregation
strategy in favor of a direct attack on the "separate but
equal" doctrine.11 Both instances represented the beginning
of a campaign to use equal protection arguments, founded
upon empirical and sociological data, to directly challenge
systemic racism and discrimination in the American legal
system.

A confluence of competing social, political, and
jurisprudential values defined the legal system that judged
the Martinsville Seven. At a time when civil rights for
African-Americans and the procedural rights of the accused
were only beginning to gain credibility in the federal
courts, Southern black defendants, especially when guilty,
occupied an untenable legal position. During a period of
domestic and international tension, NAACP attorneys had to

293
distance their organization from radical groups like the CRC
while contending with a system of criminal justice that
favored security for the community over protections for the
accused. The race of the defendants exacerbated these
tensions, but only a change in the political and legal
culture of the United States would obtain the remedies
sought by civil rights leaders.

Notes

1. Richmond Afro-American, 10 February 1951, p. 3; Grossman
to Josephine Grayson, 16 February 1951, and Patterson to
Josephine Grayson, 19 March 1951, both in File a229, Box 11,
CRC Papers; Civil Rights Congress, We Charge Genocide (New
York: International Publishers, 1951) ; Peter Ros Henrigues,
"John S. Battle and Virginia Politics: 1948-1953" (Ph.D.
diss., University of Virginia, 1971), 187 n. 20.

2. See Gunnar Myrdal, An American Dilemma: The Negro Problem
and Modern Democracy (New York, 1944) , 30-31, 335-36.

3. Jessie Daniel Ames, The Changing Character of Lynching:
Review of Lynching, 1931-1941 (Atlanta, 1942), 34-50; National
Association for the Advancement of Colored People, Thirty
Years of Lynching in the United States: 1889-1918 (New York,
1919; reprint, New York, 1969), 41; William J. Bowers, Legal
Homicide: Death as Punishment in America, 1864-1982 (Boston,
1984), Appendix A; Bernard Peyton Chamberlain, The Negro and
Crime in Virginia (Charlottesville, 1936), 73.

4. Interview with Oliver Hill, 13 August 1991; Louisville
Times, undated clipping in Box 13, Virginius Dabney Papers.
See also Danville Bee, 5 February 1951, p. 4, and Washington
Evening Star. 4 February 1951, reprinted in Congressional
Record, 82d Cong., 1st sess., 1951, 97, pt. 11: A574.

5. Richmond Times-Dispatch, 1 February 1951, p. 6; Time, 12
February 1951, 21; Roanoke World News, 1 February 1951, p. 6;
Danville Register, 26 January 1951, p. 6; Richmond Afro-
American, 17 February 1951, pp. 4 , 19 .

294

6. Advertisement, "An Open Letter to the Chief Justice of the
United States Supreme Court," Daily Compass, 22 February 1951,
clipping in File jllO, Box 45, CRC Papers; Patterson to Mrs.
Hairston, 27 February 1951, File a229, Box 11, CRC Papers;
Patterson to Josephine Grayson, 27 August 1951, File m49, Box
58, CRC Papers; James Malloy to John Saunders, 31 October
1951, File pl37, Box 84, CRC Papers; "Report of Campaign
around Martinsville Seven," Detroit Civil Rights Congress,
November 1950, File p92, Box 82, CRC Papers; Patterson to
Frances Damon, 17 November 1950, File a227, Box 11, CRC
Papers; Lester Davis to Grossman, 17 November 1950, File p62,
Box 80, CRC Papers.

7. Walter White, typescript of syndicated column, 8 February
1951, Box 34, Wilkins Papers; Report of the Executive
Secretary, NAACP, January 1951, Box A145, General Office
Files, NAACP Papers; Norfolk Journal and Guide, 10 February
1951, p. 14. Mary Dudziak discusses the NAACP 's efforts to
link civil rights and cold war liberalism in "Desegregation
as a Cold War Imperative," Stanford Law Review 41 (November
1988) : 61-120. Conservative southern attitudes toward
communism and civil rights are explored in Wayne Addison
Clark, "An Analysis of the Relationship Between Anti-Communism
and Segregationist Thought in the Deep South, 1948-1964"
(Ph.D. diss., University of North Carolina at Chapel Hill,
1976), 24-26, 74-75, 172, 199-200; and Richard M. Fried,
"Electoral Politics and McCarthyism: The 1950 Campaign," in
The Specter: Original Essays on the Cold War and the Origins
of McCarthyism, ed. Robert Griffith and Athan Theoharis (New
York, 1974) , 195-200.

8. Tinsley and Banks to Roy Wilkins, 8 February 1951, and
Tinsley and Banks to Gloster Current, 8 February 1951, both
in Box C212, Branch Files, NAACP Papers; Meeting of the Board
of Directors, NAACP, 13 February 1951, Box A135, General
Office Files, NAACP Papers; Meeting of the Executive Committee
of the Board of Directors, NAACP Legal Defense and Educational
Fund, Inc., 19 March 1951, Box 44, Spingarn Papers; Anne Shore
to Aubrey Grossman and William Patterson, 11 November 1950,
File p92, Box 82, CRC Papers.

9. "Equality Before the Law," Christian Century. 21 February
1951, 227-28; James Pollard to Virginius Dabney, 7 February
1951, Box 10, Dabney Papers; Gerald F. Harris to Dabney, 13
February 1951, Box 6, Dabney Papers; Henry S. Smith to Harold
Burton, 28 February 1951, Box 77, Burton Papers.

10. Interview with Roland Ealey, 13 August 1991; Martin to
Powe, 6 October 1950, File al80, Box 9, CRC Papers; "The Case
of the Martinsville Seven," Civil Liberties Reporter. 27
February 1951, 8-11, copy in File vl35, Box 98, CRC Papers;
Charles H. Martin, "The Civil Rights Congress and Southern

295

Black Defendants," Georgia Historical Quarterly 71 (Spring
1987): 47; Oakley C. Johnson, "New Orleans Story," Centennial
Review 12 (Spring 1968): 216-18; Donald H. Partington, "The
Incidence of the Death Penalty for Rape in Virginia,"
Washington and Lee Law Review 22 (Spring 1965): 54-55; Michael
Meltsner, Cruel and Unusual: The Supreme Court and Capital
Punishment (New York, 1973), especially Chap. 3; David C.
Baldus, George G. Woodworth, and Charles A. Pulaski, Jr.,
Equal Justice and the Death Penalty: A Legal and Empirical
Analysis (Boston, 1990), 10-11. The Virginia Supreme Court
rejected sentencing disparity arguments in Wansley v.
Commonwealth. 205 Va. 412 (1964) (judgment reversed and
remanded on other grounds) , Brickhouse v. Commonwealth, 208
Va. 533 (1968), and Fogg v. Commonwealth. 208 Va. 541 (1968).
The most recent consideration of statistical evidence in
a death penalty case occurred in McClesky v. Kemp, 481 U.S.
279 (1987). In a 5-4 decision, the U. S. Supreme Court
rejected a statistical demonstration of bias in the death
penalty, holding that a condemned person had to show overt
bias in his or her particular case.

11. Interview with Roland Ealey, 13 August 1991. On the
desegregation campaign, see Mark V. Tushnet, The NAACP's Legal
Strategy against Segregated education, 1925-1950 (Chapel Hill
and London, 1987) ; and Richard Kluger, Simple Justice: The
Story of Brown v. Board of Education and Black America's
Struggle for Eguality (New York, 1976) .

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BIOGRAPHICAL SKETCH

Eric Walter Rise, a fifth-generation native of Florida,
was born in Vero Beach on February 19, 1963. He attended
public schools in Bradenton, Florida, and graduated from
Manatee High School in 1981. In 1984 he recieved his B.A.
with honors in history from the University of Florida and
three years later he was awarded an M.A. in history from the
same institution. In 1987 he undertook the concurrent
degree program in law and history at the University of
Florida and earned a Ph.D. in history and a J.D. with honors
in 1992. He began teaching in the Department of Sociology
and Criminal Justice at the University of Delaware in the
fall of 1992. Mr. Rise is married to Karen Rise, a full-
time schoolteacher and part-time quiltmaker and gardener.
They share their home with several goldfish, a dog, and a
few thousand fleas.

317

I certify that I have read this study and that in my
opinion it conforms to acceptable standards of scholarly
presentation and is fully adequate, in scope and quality, as
a dissertation for the degree of Doctor of Philosophy.

l-NUll

Kermit L. Hall, Chairman
Professor of History

I certify that I have read this study and that in my
opinion it conforms to acceptable standards of scholarly
presentation and is fully adequate, in scope and quality, as
a dissertation for the degree of Doctor of Philosophy.

VrA^^d^-

Robert H. Zieger
Professor of History

I certify that I have read this study and that in my
opinion it conforms to acceptable standards of scholarly
presentation and is fully adequate, in scope and quality, as
a dissertation for the degree of Doctor of Philosophy.

David R. Colburn
Professor of History

I certify that I have read this study and that in my
opinion it conforms to acceptable standards of scholarly
presentation and is fully adequate, in scope and quality, as
a dissertation for the degree of Doctor of Philosophy.

C. John Sommerville
Professor of History

I certify that I have read this study and that in my
opinion it conforms to acceptable standards of scholarly
presentation and is fully adequate, in scope and quality, as
a dissertation for the degree of Doctor of Philosophy.

Michael L. Radelet

Associate Professor of Sociology

I certify that I have read this study and that in my
opinion it conforms to acceptable standards of scholarly
presentation and is fully adequate, in scope and quality, as
a dissertation for the degree of Doctor of Philosophy.

Anne L. Spitzer \ ~£S
Associate Professor of Law

This dissertation was submitted to the Graduate Faculty
of the Department of History in the College of Liberal Arts
and Sciences and to the Graduate School and was accepted as
partial fulfillment of the requirements for the degree of
Doctor of Philosophy.

December 1992

Dean, Graduate School

.UNIVERSITY OF FLORIDA

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